Toatoalei and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 577

Toatoalei and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 577 (12 May 2025)
Applicant:Falefitu Alapati Toatoalei
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/1440

Tribunal: Senior Member C Thwaites
Place:Melbourne
Date:12 May 2025
Decision:The decision not to revoke the cancellation of the Subclass 444 Special Category (Temporary) visa, is affirmed.

.....................................................................
Senior Member C Thwaites
Catchwords
MIGRATION – review under section 501CA(4), character test, – Ministerial Direction No 110.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Amendment Act 2024 (Cth)
Migration Regulations 1994 (Cth)
Secondary Materials
Minister for Immigration and Multicultural Affairs (Cth), Direction No 110: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (7 June 2024)
Statement of Reasons

This is an application for review of a decision by a delegate of the Respondent not to revoke the cancellation of a Subclass 444 Special Category (Temporary) visa previously held by the Applicant, made under section 501CA(4) of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The Applicant is a citizen of New Zealand and is now 39 years old. He first arrived in Australia in 1998 aged 12. According to the Applicant, he was not really sure why he was sent to Australia. He spent his first two years in Australia living at his uncle’s home in Sydney. He had some troubles and was then sent to live with his uncle in Melbourne. He lived with his uncle in Melbourne for about four years and attended high school where he was good at music and art. He left school in year 11 to continue working in a warehouse where he had been working from 16 years of age. Since that time, he has also worked as a bricklayer, forklift driver, in demolition, and container unloading.
His time at his uncle’s home in Melbourne was difficult and he ran away several times starting soon after he arrived. His uncle was strict, and the Applicant was beaten, kicked and stomped on a number of times. The Applicant began to use alcohol around the age of 14 or 15 and described his use as heavy, any chance he could get. During that time at his uncle’s home, the Applicant and his friends did chroming and used marijuana.
The Tribunal accepts the Applicant had a dysfunctional and disadvantaged upbringing.
The Applicant has a significant number of convictions since he turned 18 years old, which are discussed in more detail below. The most recent convictions occurred on 7 October 2016 when he was convicted in the Melbourne County Court for multiple offences including aggravated burglary, armed robbery and kidnapping. He received a total effective sentence of eight years and six months imprisonment with a non-parole period of five years.
On 24 January 2020, the Applicant’s Subclass 444 Special Category (Temporary) visa was mandatorily cancelled under section 501(3A) of the Act (the original decision).
On 29 January 2020, the Applicant sought revocation of the cancellation.
On 17 February 2025, a delegate of the Minister decided not to revoke the cancellation, under section 501CA(4). The Applicant was notified of this decision on 18 February 2025.
On 26 February 2025, the Applicant applied to the Tribunal for review of that decision.
The Applicant attended a hearing on 5 and 6 May 2025 and gave oral evidence. He was not represented.
The Tribunal has also taken into consideration the evidence and material the Applicant provided to the Department and contained in the Hearing Book, including his Personal Circumstances Form, and letters in support.[1] The Applicant did not file any material in support of his application with the Tribunal.
[1] HBG7/57-G11/77
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act states the Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record.
Section 501(7)(c) states that, for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (section 499(2A)).
The Minister has issued Direction 110, Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (the Direction) dated 7 June 2024.
The Direction sets out the considerations to be taken into account when considering a request to revoke a cancellation and states: a non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case. The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act.
Clause 5.2 of the Direction sets out the principles to provide a framework for decision making. These are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out the primary considerations to be taken into account:
8.1protection of the Australian community from criminal or other serious conduct;
8.2whether the conduct engaged in constituted family violence;
8.3the strength, nature and duration of ties to Australia;
8.4the best interests of minor children in Australia;
8.5expectations of the Australian community.
Paragraph 9 of the Direction sets out other considerations to be taken into account including:
9.1Legal consequences of the decision;
9.2Extent of impediments if removed;
9.3Impact on Australian business interests.
ISSUES
The issues to be determined in this application are:
1)Does the Applicant pass the character test as set out in section 501(6), and if not,
2)Whether there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Minister’s Direction No. 110.
FINDINGS AND REASONS
Does the Applicant pass the character test?
The Applicant did not dispute that he does not pass the character test.
On the evidence before it, including the Check Results Report and the sentencing remarks of His Honour Judge Meredith of the County Court of Victoria, the Tribunal finds that on 7 October 2016 the Applicant was convicted of one charge of false imprisonment, two charges of kidnapping, one charge of robbery, two charges of theft, two charges of armed robbery, once charge of blackmail, once charge of aggravated burglary, two charges of possessing a firearm whilst being a prohibited person, one charge of possession of a drug of dependence, one charge of handling stolen goods, and the summary offence of possessing cartridge ammunition without a licence. He received a total effective sentence of eight years and six months imprisonment, with a non-parole period of five years. [2]
[2] HB 33-50
The Tribunal finds the Applicant has a substantial criminal record and does not pass the character test set out in section 501(6)(a) of the Act.
Whether there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Minister’s Direction No. 110.
The Tribunal has considered each consideration set out in the Direction in turn, keeping in mind the principles in clause 5.2 of the Direction.
8.1 The protection of the Australian community from criminal or other serious conduct
This consideration requires the Tribunal to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
The Tribunal is required to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
The Tribunal should also give consideration to the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
8.1.1 Nature and seriousness of the conduct
According to the sentencing remarks of His Honour Judge Meredith, the Applicant’s most recent offences arose out of three separate incidents taking place on 18 March, 2 April and 7 April 2016. In addition, on 13 April 2016, the Applicant was arrested in a search of his premises which resulted in the laying of further charges.
The first incident on 18 March 2016 involved the victim, Mr Michael Karam, contacting an associate and alleged co-offender of the Applicant, Mr Norman Khan. This was to arrange the supply of methamphetamine or ice as the drug is known, and a meeting was to take place at Fountain Gate Shopping Centre car park. At around 5.00am, the Applicant’s victim arrived at the shopping centre car park with his friend, Mr Luike McNeilage, as a passenger. Mr Khan arrived driving a Mercedes-Benz four-wheel-drive of which the Applicant was a backseat passenger, and an unidentified man as the front seat passenger. The Applicant’s victim, Mr Karam, got into the back passenger seat and consumed some methamphetamine from a pipe while he was in the car. During this time, he became concerned as he observed an unknown man on foot circling the area where the car had been parked. The Applicant suddenly grabbed Mr Karam around the neck in a chokehold and the unidentified man in the front passenger seat commenced punching him to the head and face. The Applicant’s victim screamed out for help. Mr McNeiliage approached the car but desisted from providing assistance as the presence of the unknown man who had been circling the vehicle prevented this. Mr Karam was unable to escape from the vehicle as he was being assaulted and held by the throat. The Applicant’s victim Mr Karam remained in the Mercedes-Benz as it was ultimately driven away from the car park. The Applicant continued to choke him, and he was also punched from the front seat passenger. Mr Karam was unable to breathe properly and lost consciousness for part of the journey as the Applicant had him in a choke hold. The conduct described taking place in the car park constituted the factual basis of the charge of false imprisonment. The charge of kidnapping involved the Applicant’s conduct after he left the car park until the commencement of the charge of robbery. The charge of robbery involved the vehicle having come to a stop and Mr Karam being stripped of his shoes and shorts while he was being held down by the Applicant and another. Possessions were removed from him including about $1400 in cash, a Samsung mobile phone, cigarettes and half a gram of methamphetamine. The keys for a Statesman motor vehicle which belonged to Mr Karam’s father were within the cigarette case that was removed. Mr Karam was ejected from the car after the items were taken from him.
The charge of theft involved the removal of the Statesman belonging to Mr Karam’s father from the Fountain Gate Shopping Centre car park. This vehicle was recovered three days later in the Broadmeadows area with damage to the front of it. In the Applicant’s interview with police, he admitted to having stolen the car and dumping it after it had crashed into another vehicle.
The Applicant made full admissions to his other offending, however he told the investigators that he acted alone. The Applicant said that his intention was to collect off Mr Karam, and to take basically whatever he had on him. The Applicant admitted to putting him to sleep as he had him around the neck and then he drove off.
The second incident of offending took place on 2 April 2016. The Applicant’s victim in this matter was Mr Saini Turaga. At about 5:30am, the Applicant’s victim drove his Holden Calais to a hotel car park in Cranbourne. A vehicle driven by Mr Norman Khan arrived and was parked in a position to prevent the Applicant’s victim from moving his car. The Applicant got out of the vehicle driven by Mr Khan and was holding a shotgun. He held the gun to the face of his victim and demanded that he get out of the vehicle and into its boot. The Applicant’s victim complied, and the Applicant told him that he would be shot in the leg if he refused. The Applicant then got into the victim’s car and drove away, with Mr Khan driving behind in convoy. This conduct constituted the charge of armed robbery.
At a stage in the journey, the car came to a stop and the Applicant’s victim manipulated the lock of the boot and got out and entered the front passenger seat. He pleaded with the Applicant to explain what he was doing and to desist from his behaviour. The Applicant punched the victim in the face four times and then used the butt of the shotgun to hit him in the face several times, telling him the only reason he was not dead was because he had a baby due soon. The circumstances described constituted the offences of armed robbery and kidnapping.
Prior to the Applicant’s victim’s escape, the Applicant committed blackmail. This involved the Applicant telling his victim that he was to sign over his car to the Applicant and that the Applicant would take him to his house so that all the necessary paperwork could be completed. The Applicant’s victim was returned to the boot of the car and during the journey the Applicant opened the boot and stripped his victim of his shoes and pants and required him to empty his pockets. The Applicant again drove off with the victim in the boot of the vehicle. The Applicant’s victim was able to pop the boot of the vehicle and run away as the Applicant continued driving with Mr Khan following in convoy. The vehicle in question is yet to be recovered.
The charge of aggravated burglary involved the Applicant continuing to his victim’s address in Narre Warren South. At approximately 8.00am, the Applicant and another unidentified male forced entry to the house. The Applicant was holding a shotgun, and the unidentified co-offender was holding a large knife. Present in the house were three people. All of these individuals were forced to lay down on their stomachs after they were retrieved from bedrooms and forced to the lounge room. The Applicant continually asked for the whereabouts of Mr Saini Turaga in the belief that he had returned to his residence, however he had not.
The charge of theft involved the Applicant removing a number of items, including a wallet, mobile phones, a bag and a purse, a Samsung television, an Xbox and video games, which belonged to the occupants of the residence. In the course of doing this, the Applicant placed his foot on Mr Temo Turaga’s head, pointing the gun towards him, and questioning him about a black car. The Applicant told Mr Turaga that he had his brother to blame for all of this and stated to him that when his brother returned, to convey to him that “he’s dead”.
In his interview with police, the Applicant made full admissions to the offending. He stated to the investigators that his victim “knows why he fucked up”, that the Applicant put a shot gun on him, and dragged him out and threw him in the boot of his own car and drove off, and that the Applicant got rid of his car having sold it off, and the Applicant admitted to the aggravated burglary and associated offending.
The third incident of offending took place on 7 April 2016. This incident involved the victim, Mr Michael Pierce, having been seated in his Ford motor vehicle with his female friend, Ms Tui Maxwell-Hayes, in Springdale South. The Applicant was driving a VW golf and pulled up near them. The Applicant’s victim did not know the Applicant and after conversing with him the Applicant removed the keys from the ignition of his car and held a firearm to him stating “you’re being jacked”.
A number of other male offenders, possibly up to five, got out of the Volkswagen and some of them were also holding firearms. The Applicant’s victim and his female friend got out of their car and allowed the others to enter and drive off. The Applicant’s co-offender, Mr Khan, was found in possession of the stolen car on his arrest on 8 April 2016.
The Applicant made full admissions to his offending to investigators, admitting that he had stolen the car and later given it to a friend. The Applicant added that he lured the victim to the relevant area by effectively offering him drugs.

On 13 April 2016, the Applicant was arrested by the Special Operations Group at his residence in Noble Park. On execution of the search warrant two firearms were found, namely a sawn-off shotgun and a sawn-off rifle under the Applicant’s bed. This constituted the charges of being a prohibited person in possession of a firearm. A small amount of methamphetamine was also found in the Applicant’s bedroom, this constituted the charge of possessing a drug of dependence. Having regard to the quantity and the manner in which it was found, His Honour Judge Meredith accepted this was for the Applicant’s personal use. The charge of handling stolen goods involved police locating identification cards belonging to Saini and Temo Turaga. The related summary offence involved various amounts of ammunition being found in the Applicant’s bedroom.
No victim impact statements were tendered on the plea hearing.
His Honour Judge Meredith stated that the Applicant’s offending was self-evidently serious. It was violent and protracted, and included a home invasion in circumstances that could only have been terrifying to the victims. On the Applicant’s plea, it was put that his motivation, apart from the incident with Mr Pearce, was to recover monies owed to an unnamed acquaintance, and that the Applicant had effectively been hired to collect this on his behalf. It was said the Applicant was to earn several thousand dollars for his participation in this debt collection arrangement.
His Honour Judge Meredith noted that the Applicant had amassed a not insignificant number of prior convictions. These are of offences of violence and dishonesty. The Applicant’s last three court appearances were noted as follows.
In May 2013, the Applicant was dealt with at the Magistrates’ Court in Dandenong and received an aggregate term of imprisonment of 12 months. He was dealt with again at the Dandenong Magistrates’ court in April 2014 and received an aggregate term of imprisonment of 10 months for the offences of intentionally damaging property and affray. The Applicant was again dealt with in the Magistrates’ Court at Frankston in October 2014 and received a sentence of 14 months imprisonment for the offence of recklessly causing injury. His release date from the sentence would have been towards the end of 2015. During the hearing, the Applicant confirmed he was released on 25 December 2015.
The offending for which His Honour Judge Meredith sentenced the Applicant commenced on 18 March 2016. His Honour commented that it seemed that, unfortunately, the Applicant was unable to remain out of trouble after his release from custody and that the context of the Applicant’s offending involved abusing both alcohol and the drug methamphetamine.
His Honour Judge Meredith noted, to the Applicant’s credit, that in the past there has been a gap in his offending, which was reflected in the fact that he was not sentenced by a court between July 2006 and December 2010. His Honour noted that this corresponded with a period in the Applicant’s life where he was in a relationship and had a child, a daughter. It seemed that the relationship did not last, and the Applicant’s offending resumed once the relationship failed. His Honour noted the Applicant had both phone and visit contact with his daughter since his remand. His Honour accepted that the Applicant’s daughter was a motivating factor for the Applicant and that the Applicant wished to ultimately be a positive part of her life.
His Honour noted that the abuse of alcohol and other drugs has been a long-standing problem for the Applicant. The Applicant commenced drinking at an early age and has abused drugs for some time.
His Honour noted that the Applicant’s plea of guilty at an early stage did evidence some remorse on his part, as well as facilitating the course of justice. In addition, the Applicant made full admissions to his conduct and the prosecution relied significantly upon the admissions in securing the Applicant’s convictions. The Applicant was entitled to an appropriate discount of sentences as a result of his plea of guilty. His Honour indicated that but for the Applicant’s plea of guilty, he would have imposed a total effective sentence of ten years and six months imprisonment and a fixed term of non-parole period of seven years.
His Honour was of the view that the Applicant’s rehabilitation was still achievable. A psychological report confirmed that the Applicant was of reasonable intellect. The Applicant had been able to hold down employment previously and he had in the past had a significant gap in offending. In His Honour’s view, however, the Applicant must curb his drug and alcohol use as it seemed his offending was contextualised by abuse of these substances. His Honour stated that whether or not the Applicant commits to an offence free future was ultimately a matter for him, however it was a choice he was still capable of embracing.
During the hearing, the Applicant’s criminal history from the time he was 18 years old, as outlined in the Check Results Report and the Assessment Report from Correction Victoria dated 19 July 2017, was discussed.[3] The Applicant confirmed that, on 14 July 2006, he was convicted of Affray, on 2 December 2010, he was convicted of recklessly causing injury, and on 15 May 2013, he was found to have contravened a suspended sentence due to further general and violent offences including assault police, who the Applicant told the Tribunal was a Protective Services Officer who used a racial slur and who he believed was racist towards him.
[3] HB G3/33-35, R1/11
The Applicant was also convicted of Intentionally Damage Property and Affray on 22 April 2014. The Applicant confirmed he was affected by different illicit drugs at the time including speed, ecstasy and ice.
On 20 October 2014, the Applicant was also convicted of Recklessly Cause Injury. The Applicant told the Tribunal this involved him trying to break up a fight between his girlfriend and another female at a barbeque in Frankston. This incident was described in the Assessment Report, noting the Police’s summary of charges as the Applicant having assaulted and stabbed a female at a party.[4] This incident was also described in the Saltie Detention and Supervision Order (DSO) Report dated 6 March 2024 written by Senior Psychologist Rachel Chan[5], which noted that the Applicant admitted to the assault but denied he stabbed the female, but acknowledged that she may have sustained the injury when he threw her to the ground. This was consistent with the Applicant’s evidence during the hearing that he did assault the female victim but did not stab her.
[4] R1/17
[5] R1/45
The Applicant told the Tribunal he accepted responsibility for his actions and held himself accountable and did not blame anyone else. He acknowledged he had hurt his family and loved ones and the victims of his conduct. He noted at the time he was an angry person from his history and what had happened to him when he was young. He later told the Tribunal this was not the person he was now, and he chose not to be that person, and that he would now seek help when needed.
When considering the nature and seriousness of the Applicant’s conduct, clause 8.1.1(1)(a) of the Direction provides a list of matters the Tribunal must have regard to. Without limiting the range of conduct that may be considered very serious, the types of crimes or conduct listed are viewed as very serious by the Australian Government, and include violent crimes, crimes of a violent nature against women.
On the evidence before it, the Tribunal finds the Applicant has committed violent crimes, crimes of a violent nature against women.
Clause 8.1.1(1)(b) of the Direction states that without limiting the range of conduct that may be considered serious, the types of crimes or conduct listed are viewed as serious by the Australian Government, and include crimes committed against government representatives or officials in the performance of their duties.
On the evidence before it, the Tribunal finds the Applicant has committed crimes against government representatives or officials in the performance of their duties.
On the evidence before it, the Tribunal accepts that the Applicant has a history of violent offending, including very serious and unprovoked violent crimes, including affray, reckless cause injury, assault police, false imprisonment, kidnapping and armed robbery.
The Tribunal accepts the submissions that the Applicant is a very violent, recidivist offender. The Tribunal notes the frequency of the Applicant’s offending, and the Tribunal also accepts the submissions that the Applicant’s criminal history demonstrates a trend of increasing seriousness.
The Applicant’s most recent offending resulted in a sentence of a total of eight years and six months imprisonment. While the Tribunal notes the Applicant received a sentencing discount for pleading guilty at an early stage and that His Honour Judge Meredith considered that evidence of remorse, the Tribunal also notes that without that discount His Honour indicated he would have imposed a total effective sentence of ten years and six months.
The Tribunal considers sentences of imprisonment as the most serious in the sentencing hierarchy. The Tribunal considers an eight year and six months sentence to imprisonment is a significant sentence.
Having regard to all the factors noted above, the Tribunal considers the nature and seriousness of the Applicant’s conduct as very serious.
8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has had 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. In assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct; and the likelihood of the Applicant engaging in further criminal or other serious conduct.
The Tribunal has taken into account the information and evidence on the risk of the Applicant reoffending and the evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.
The Tribunal accepts the seriousness of the Applicant’s offending is such that any risk of reoffending is unacceptable.
The Tribunal notes His Honour Judge Meredith’s sentencing remarks, that the Applicant’s offending was violent and protracted, and included a home invasion in circumstances that could only have been terrifying to the victims.
The Tribunal accepts the submissions that should the Applicant reoffend, this would result in serious physical, psychological and/or financial harm to members of the Australian community.
The Tribunal has considered the Applicant’s remorse, as given in oral evidence during the hearing, and by way of his early plea commented on by His Honour Judge Meredith.
The Tribunal notes the Corrections Victoria Offending Behaviour Programs Assessment Report dated 19 July 2017 made treatment recommendations that the Applicant engage in the Talking Change Program and the High Intensity Violence Intervention Program.[6]
[6] R1/24
The later and more contemporary Saltie Detention and Supervision Order (DSO) Assessment Report dated 6 March 2024 noted the Applicant had been offered those programs a number of times, but for a number of reasons, including not being given an opportunity to undertake the program individually and not in the group program, he had not engaged in the High Intensity Violence Intervention Program.
During the hearing, the Applicant confirmed he had not undertaken the High Intensity Violence Intervention Program, and told the Tribunal he had attended three sessions of the Talking Change Program but again, for a number of reasons, including not wishing to complete it and then fail, he did not complete the program.
On the evidence before it, the Tribunal finds the Applicant has not engaged in the High Intensity Violence Intervention Program, and the Tribunal accepts the Applicant did attend three sessions in the Talking Change Program but did not complete that program.
The Applicant also told the Tribunal he had done some Alcohol and Drug programs prior to 2014, and confirmed that he had not attended any Alcohol and Drug courses since his most recent convictions in 2016. He told the Tribunal he had undertaken a parenting program in his last sentence and had also obtained a number of construction industry cards.
The Tribunal has given considerable weight to the opinion of Senior Psychologist Rachel Chan as outlined in the Saltie Detention and Supervision Order (DSO) Assessment Report, that the Applicant represents a high risk of reoffending in a violent manner[7] as per Schedule 2 of the Serious Offenders Act 2018 (Vic), which the Tribunal notes includes offences such as homicide by firearm, causing serious injury intentionally in circumstances of gross violence, causing serious injury recklessly in circumstances of gross violence, causing serious injury intentionally, causing serious injury recklessly, and kidnapping.
[7] R1/63
The Tribunal has given weight to the Applicant’s oral evidence that if he remains in Australia, on his release he would immediately move to Sydney and his family, away from the influence of his friends in Melbourne. He regrets his past actions and is no longer that angry person. Being with his family and getting back involved in his church community and getting back to work, and being a positive influence in his daughter’s life will be protective factors against the risk of him reoffending. He also indicated he would undertake courses that would support him in the community.
Nevertheless, the Tribunal remains concerned that the Applicant has not completed the behavioural programs recommended back in 2017, and while the Applicant told the Tribunal he has not had any alcohol for 11 years, he has not completed any Alcohol and Drug programs since his most recent incarceration. The Tribunal also notes in His Honour Judge Meredith’s sentencing remarks, that the context of the Applicant’s offending behaviour involved abusing both alcohol and the drug methylamphetamine.
The Tribunal also notes the relatively short amount of time the Applicant spent in the community between being released from incarceration in December 2015 and the Applicant’s most recent offending behaviour in March/April 2016.
The Tribunal accepts the submissions that the Applicant had family and work available to him prior to his most recent offending behaviour, and the Tribunal is not persuaded that the protective factors described by the Applicant provide him with new skills and strategies, or significantly change his circumstances, or the overall assessment that he represents a high risk of reoffending in a violent manner.
The Tribunal finds the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct is high.
Having considered all the factors mentioned above, cumulatively, the Tribunal considers the protection of the Australian community weighs heavily in favour of affirming the decision under review.
8.2 Family violence committed by the Applicant
While there is some mention of an Intervention Order granted in 2013 in the Saltie Detention and Supervision Order (DSO) Assessment Report[8], the Applicant told the Tribunal he did not attend any hearing for that order, and the Respondent did not pursue this consideration.
[8] R1/45
The Tribunal considers there is no evidence before the Tribunal for it to conclude that the Applicant engaged in any family violence, and as such, this consideration is not relevant and given no weight.
8.3 The strength, nature and duration of ties to Australia
During the hearing, the Tribunal heard evidence from the Applicant about his family and ties to Australia. The Tribunal has also considered the information provided by the Applicant in his Personal Circumstance Form provided to the Department[9], including information about his family, siblings and nieces.
[9] HB G7/62
The Tribunal accepts the Applicant has a daughter who lives with her mother in Sydney, and who he has telephone contact with about once a month. The Applicant’s father also lives in Sydney with two of the Applicant’s sisters and two nieces. The Applicant has a good relationship with these relatives and ongoing contact.
The Applicant has an uncle, aunt and cousin in Brisbane and has had some ongoing contact with them since a family funeral in December 2024. The Applicant also has another uncle in Brisbane and in Sydney who he has less contact with.
The Applicant has regular contact with his cousin Jeremiah in Melbourne and his two cousins Joseph and Patrick in Sydney.
The Applicant has a cousin Lucky Ulutui in Melbourne who he stayed with when he ran away from his uncle’s home, and who provided a letter in support of the Applicant, highlighting the positive changes in the Applicant and his commitment to his faith and his daughter.
The Applicant also has a friend Victoria Po’oi who provided a letter in support, noting the Applicant’s background and the significant positive changes in his life and his commitment to a life free of drugs, violence and crime, and devotion to his daughter.
The Tribunal has also considered the letters of support from a long-time friend Gloria Lyden, and from Ioane Seiuli. Ms Lyden noted the Applicant’s significant challenges in his past and his unwavering determination to overcome these obstacles and rebuild his life, and provide his daughter with a stable and loving home. Ioane Seiuli attested to the Applicant’s exceptional character as a devoted family man, talented artist and passionate advocate for his heritage, noting the Applicant has a strong support network of family, including his daughter, waiting to support him.
The Applicant also told the Tribunal about his daughter who was born in Australia in 2008 who he has contact with currently about once a month by telephone.
On questioning, the Applicant indicated he has not been involved in any community or charitable work in Australia. The Applicant later told the Tribunal that he did play in under 17s for Rooty Hill Dragons and then Waverly Panthers, and was involved in a church community in 2007/08.
The Tribunal accepts the Applicant has been in Australia since he arrived at the age of 12 in 1998. He has spent 27 years in Australia and attended high school until he left in year 11. The Tribunal accepts the Applicant has held a number of jobs since leaving school and has family and friends in Australia as noted above.
While the Tribunal accepts the Applicant’s has ties to Australia through his family and friends, the Tribunal also notes the Applicant has spent a significant amount of time in some form of detention since 2016 which has limited his ties and contact to his family and friends in Australia over that period of time. Nevertheless, the Tribunal does accept affirming the decision under review would cause some distress and emotional hardship for the Applicant’s family and friends who are Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Tribunal accepts the strength, nature and duration of the Applicant’s ties to Australia through his history, family and friends provides some weight in favour of revoking the original decision.
8.4 Best interest of minor children in Australia affected by the decision
Based on the Applicant’s oral evidence during the hearing, which was generally consistent with the information he had previously provided to the Department about his family, including a birth certificate, the Tribunal accepts the Applicant has a daughter who was born in Australia in 2008. The Applicant confirmed he and his daughter’s mother separated in the first years of his daughter’s life, and he has not lived with her since that time. The Applicant also confirmed his time in detention has meant he has had limited contact with his daughter over extended periods, there have been long periods of absence, and that her mother has been like a sole parent for most of her life.

The Applicant confirmed that there are no court orders in relation to parental access and care arguments. His daughter is now 16 years of age and lives with her mother in Sydney. If the Applicant remains in Australia, he plans to move to Sydney to live with his father and sisters and nieces, and work with his cousins, and build his relationship and be a positive influence in his daughter’s life.
There is no medical evidence before the Tribunal about the impact the Applicant’s prior conduct had on his daughter, although clearly the Applicant’s incarceration and detention has adversely affected his relationship with his daughter and her mother, given the Applicant’s oral evidence that the relationship with his daughter’s mother ended when he was incarcerated in 2012, and his lengthy period of time spent in detention has limited his involvement in his daughter’s life.
While the Tribunal accepts the Applicant wishes to become more involved in his daughter’s life, and the Tribunal has considered the information provided in the Applicant’s Personal Circumstances Form[10] and his statement that a negative decision would impact his daughter immensely, the Tribunal also notes the Applicant’s oral evidence under questioning that his contact with his daughter is currently limited to telephone calls approximately once a month, and that his removal from Australia would have a limited impact on his daughter, and that he and his daughter could stay in contact by telephone, and she may be able to visit him in New Zealand in the future.
[10] HB G7/62
While the Applicant did provide further information in his Personal Circumstances Form about his nieces, he confirmed during the hearing they are aged in their twenties and that apart from his daughter, there are no other minor children that may be affected by the decision. [11]
[11] The Tribunal has considered this information in the section relating to ties to Australia.
The Applicant’s daughter is now 16 years of age, which means there is limited time before she turns 18 for the Applicant to play a positive parental role. While noting the Applicant’s oral evidence and the information he provided in his Personal Circumstances Form and provided in the letters of support about his daughter, the Applicant’s daughter has not provided a statement in relation to her own views.
There is no evidence before the Tribunal that the Applicant’s child has been or is at risk to family violence perpetrated by the Applicant or has otherwise been abused or neglected by the Applicant or that she has suffered physical or emotional trauma arising from the Applicant’s conduct.
The Tribunal accepts the Applicant loves his daughter and wants to play a larger role in her life. Nevertheless, given the factors noted above, the Tribunal considers the best interests of minor children in Australia affected by the decision provides only limited weight in favour of revoking of the original decision.
8.5 Expectations of the Australian Community
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.5(2) of the Direction sets out examples of conduct that would raise serious character concerns that the Australian community would expect that a person who undertook such conduct would not be granted a visa, including the commission of a serious crime, such as a crime of a violent nature against women, and the commission of crimes against government representatives or officials in the performance of their duties.
While the Tribunal notes the Applicant’s history and his dysfunctional and disadvantaged upbringing, and the Tribunal accepts the Applicant wishes to stay in Australia and play a positive role in his daughter’s life, the Tribunal does not consider these factors lessen the weight given to the expectations of the Australian community given the seriousness of his offences.
As noted above, the Tribunal has found the Applicant has committed crimes of a violent nature against women, and crimes against government representative or official in the performance of their duties, and the Tribunal finds the Applicant has engaged in conduct in breach of the Australian community’s expectations.
The Tribunal also finds the nature of the offences is such that the Australian community would expect the Applicant should not continue to hold a visa.
The Tribunal considers the expectations of the Australian community weighs heavily in favour of affirming the decision under review.
9 Other Considerations
In making a decision under section 501CA(4), the Tribunal must also take into account the following considerations.
9.1 Legal Consequences of the decision
The Applicant is a citizen of New Zealand and has not made any claims that would engage Australia’s non-refoulment obligations, and there is nothing on the material before the Tribunal that suggests such obligations are enlivened.
The Tribunal accepts that if it affirms the decision under review the Applicant will remain an unlawful non-citizen and will remain in immigration detention and be liable for removal from Australia as soon as reasonably practicable. This will mean his plans to remain in Australia and live and work in Sydney close to his family and his daughter will not occur.
The Tribunal accepts the Applicant will also be subjected to indefinite exclusion from Australia by operation of the Special Return Criteria in clause 5001(c) of Schedule 5 of the Migration Regulation 1994 (Cth).
The Tribunal has considered the submissions that in the absence of engagement of Australia’s non-refoulment obligations, in the circumstances where the Applicant’s removal and indefinite exclusion from Australia is the intended purpose of the statutory scheme, and these purposes underlie the considerations of Direction 110, the Tribunal should afford negligible weight in favour of revocation.
On the evidence before it, the Tribunal considers the legal consequences of the decision provides some weight in favour of revoking the original decision.
9.2 Extent of impediments if removed
The Tribunal must also consider the extent of any impediments the Applicant may face if removed from Australia to his 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 his age, health and whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country.
The Tribunal accepts the Applicant is 39 years old and has lived in Australia since he was 12, and that he attended high school in Australia.
On the basis of the Applicant’s oral evidence, the Tribunal finds the Applicant’s mother and sister and brother live in New Zealand, and the Applicant has reestablished a relationship with his mother and sister and expects to be able to live with them initially if he returns to New Zealand.
The Applicant indicated he expects he would be able to find employment in New Zealand and would then move to his own accommodation. He wants to work and be part of the community and help support his aging mother. He expects he would be able to speak to his daughter via video. He told the Tribunal he would not seek assistance from his brother in order to avoid connections with gangs in New Zealand.
While the Applicant stated in his Personal Circumstances Form that he has been diagnosed with complex PTSD and ADHD and severe depression and severe anxiety, in the Saltie Detention and Supervision Order (DSO) Assessment Report, it was reported that the Applicant denied ever receiving a formal mental health diagnosis, or being hospitalised due to mental health related issues, or attempting to intentionally hurt himself or end his life. The author of that report confirmed this was consistent with the review of the file material.[12]
[12] R1/52
On questioning, the Applicant told the Tribunal he had seen a doctor at Middleton (prison) and is now seeing a psychiatrist in immigration detention and has been prescribed with medication to help calm his mind and help with sleep. He confirmed he is not taking any anti-anxiety medication at this time but had an appointment with a doctor in immigration detention. He confirmed he had no serious physical health issues.
The Tribunal accepts the Applicant’s oral evidence that he is now seeing medical professionals about his mental health and is currently taking medication to help calm his mind and help with sleep.
The Tribunal finds the Applicant was born in New Zealand and lived there until the age of 12 and has family in New Zealand. While the Applicant has been in Australia for most of his life, the Tribunal does not consider there are substantial language or cultural barriers that would be an impediment if he was removed to New Zealand.
The Tribunal accepts the submissions that the Applicant would have access to the same level of medical, social welfare and economic support as what is generally available to other citizens of New Zealand, and that the health support he currently requires would be available to him in New Zealand.
While the Tribunal accepts the Applicant wishes to remain in Australia with his family and daughter in Sydney, and being removed to New Zealand would initially cause some level of practical, emotional and financial distress and hardship, given his family supports in New Zealand and the Applicant’s expectations of work and ability to continue his contact with his daughter via video, the Tribunal does not consider the distress and hardship would be ongoing or insurmountable.
The Tribunal considers the extent of impediments if removed provides some limited weight in favour of revoking the decision under review.
9.3 Impact on Australian business interests
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Tribunal notes the Applicant expected to work with his cousins in Sydney if he remained in Australia, there is no evidence before the Tribunal that this employment would fall into the category contemplated by this clause, and therefore the Tribunal has given this consideration no weight.
CONCLUSION
As noted above, the Applicant does not pass the character test under section 501 of the Act, and the Tribunal has to decide whether there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Minister’s Direction No. 110.
The Tribunal has given appropriate weight to information from independent and authoritative sources, and the primary consideration at clause 8.1 has been given greater weight than the other primary considerations, while the other primary considerations have been given greater weight than the other considerations, in line with the Direction.
Having considered the specific circumstances relating to the Applicant, the Tribunal considers the protection of the Australian community from criminal or other serious conduct weighs heavily in favour of affirming the decision under review. There is no evidence before the Tribunal for it to conclude that the Applicant engaged in any family violence, and as such, this consideration is not relevant and given no weight. The strength, nature and duration of the Applicant’s ties to Australia provides some weight in weigh in favour of revoking the original decision, and the best interests of minor children in Australia affected by the decision provides limited weight in favour of revoking the original decision. The expectations of the Australian community weighs heavily in favour of affirming the decision under review. Of the other considerations, the legal consequences of the decision provides some weight in favour of revoking the original decision, and the extent of the impediments to the Applicant if removed provides limited wight in favour of revoking the original decision.
While the strength, nature and duration of the Applicant’s ties to Australia, the best interests of minor children in Australia, the legal consequences of the decision and the extent of the impediments to the Applicant if removed provides some weight in favour of revoking the original decision, the Tribunal has concluded the primary considerations of the protection of the Australia community and the expectations of the Australian community weigh heavily in favour of affirming the decision under review, and on balance, outweigh the considerations in favour of revoking the original decision.
Having weighed up all the factors as part of a single evaluation, the Tribunal is not satisfied there is another reason why the original decision should be revoked under section 501CA(4), having regard to the Minister’s Direction No. 110.
DECISION
The decision not to revoke the cancellation of the Subclass 444 Special Category (Temporary) visa, is affirmed.
Date of hearing:   5 and 6 May 2025
Solicitor for the Applicant:                 Not represented
Solicitor for the Respondent:            Christopher Orchard, Sparke Helmore