Tonga and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2025] ARTA 227

Tonga and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2025] ARTA 227 (17 March 2025)
Applicant/s:  Thomas Mohelagi Tonga
Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number:                2024/11035

Tribunal: General Member J Cipolla
Place:Sydney
Date:17 March 2025

Decision:The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.

…………………[SGD]………………………
General Member J Cipolla
Catchwords
MIGRATION – Cancellation of Applicant’s Subclass 444 Special Category Visa – substantial criminal record - protection of the Australian community – strength, nature and ties to the community – prospects of rehabilitation and re-integration into the community – decision
Legislation
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Crimes Act 1900 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Pavey and Minister for Home Affairs [2019] AATA 4198
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BHYK and Minister for Immigration and Citizenship [2010] AATA 662
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Secondary Materials
Direction No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
Statement of Reasons

BACKGROUND AND OFFENDING HISTORY

Mr Thomas Tonga (the Applicant) was born on 20 December 1994 in Alofi Niue.
The Applicant is a citizen of New Zealand.
The Applicant arrived in Australia from New Zealand on 7 January 1998 when he was 3 years old.
At the time of his arrival accompanied by his parents and siblings he held a Subclass 444 Special Category visa.
The Applicant completed his primary and secondary education in Australia and completed post high school studies at TAFE New South Wales.
When the Applicant was studying for the New South Wales High School Certificate at the age of 17, his then partner fell pregnant. The Applicant considered leaving school, however, he persevered and managed to complete the Higher School Certificate.
The evidence indicates that after completing school the Applicant obtained factory jobs to support his then partner, and their baby daughter.
The evidence indicates that around this time the Applicant’s father was diagnosed with type 2 diabetes and he became increasingly unwell. The Applicant stated that his mother was studying at this time and that she had to leave her studies in order to provide care to her husband.
The Applicant stated that as a consequence of his parent’s predicament, after his father fell ill that the inherent family circumstances “increased the financial pressure on me”. The Applicant claims that this turn of events led to the onset of depression.
The evidence before the Tribunal indicates that the Applicant’s offending history did not commence until 2015 at which time, he had resided in Australia for 17 years.
The Applicant’s offending history indicates the following. On 1 June 2015 a police facts sheet indicates that the Applicant was driving a Holden Astra and was pulled over by police on the basis that police believed that the driver of the vehicle may have been suspended from driving. When asked by the police to produce his driver’s licence the Applicant advised that he had left his wallet at his cousins house. When he was not able to produce a licence he instead produced a court attendance notice with his name on it and checks indicated that the Applicant’s licence was suspended until 29 July 2015 due to a demerit points suspension.
On 30 June 2015 the Applicant was convicted in the Blacktown Local Court of driving a motor vehicle whilst his licence was suspended, first offence, and fined $500 and disqualified from driving for 12 months.
On 16 July 2015 the Applicant was convicted in the Mount Druitt Local Court of driving a motor vehicle while licence suspended, first offence for which he was fined $300 and disqualified from driving for 12 months.
On 28 April 2017 the Applicant was convicted in the Mount Druitt Local Court with a range of offences. This included using an uninsured motor vehicle (a motorcycle) for which he was fined $650. Riding a motorbike without a securely fitted approved helmet, for which he was fined $800. Driving a class of vehicle without the requisite licence to do so (the motorcycle), for which he was fined $1000. Goods in custody suspected of being stolen (the motorcycle which he was riding) for which he was placed on a Section 9 bond to be of good behaviour for 12 months and the property returned to the owner. The Applicant was also convicted of using an unregistered class A motor vehicle on the road for which he was fined $650.
For the purposes of the proceedings in the Mount Druitt Local Court on 28 April 2017 the Applicant wrote a letter to the presiding Magistrate dated 27 April 2017. In it the Applicant stated that he understood the seriousness of the charges before the court and that he accepted full responsibility for what happened on 30 September 2016. The Applicant stated that “after receiving advice from my Legal Representative, I now properly understand the repercussions such actions have on my life in terms of employment, good character, and the status of a reliable member of our community. Whilst I cannot change what happened, I am sincere when I say that I will never reoffend again”. The Applicant in this letter to the Magistrate states that “on a final note, I hope my apology is accepted by the court and I am granted an opportunity to prove to myself, my family and the community that I am a good person”.
The evidence before the Tribunal indicates that for the next 3 and a half years the Applicant did not engage in further offending behaviour.
The evidence indicates that the Applicant’s next interaction with the criminal justice system was an appearance in the Penrith Local Court on 5 November 2020 for driving a motor vehicle whilst his licence was suspended first offence, for which the Applicant was the subject of a conditional release order without conviction for 12 months commencing on 5 November 2020 and concluding on 4 November 2021.
The evidence before the Tribunal indicates that the Applicant did not engage in further offending until March and April of 2021. The evidence indicates that the Applicant was in November 2022 convicted of the offending that led to the cancellation of his Subclass 444 visa by the Parramatta District Court on 14 November 2022.
With respect to this offending the Applicant was convicted of supplying a prohibited drug, at a commercial quantity. The Applicant was also convicted of causing grievous bodily harm to a person with intent. The Applicant was also convicted of knowingly dealing with the proceeds of crime. For these three offences the Applicant was imprisoned to an aggregate term of imprisonment of three years and seven months commencing on 19 August 2022 and concluding on 18 March 2026 with a non-parole period of two years and two months commencing on 19 August 2022 and concluding on 18 October 2024.
The Tribunal has in the material before it the Crown Case Statement from the NSW Office of Department of Public Prosecutions in the tender bundle documents at TB14 pages 55-57. That document provides a recitation of the Applicants offending.
The statement indicates that at about 5:07pm on 5 March 2021 the victim was driving along Luxford Road in Hassall Grove in a black Ford Territory motor vehicle. The Applicant and his brother Samuel were also driving along this road in a dark grey BMW. The Applicant was seated in the front passenger seat, his brother Samuel was seated in the back seat and an unknown person was driving the vehicle. The BMW cut in front of Ford. The Ford then cut in front of the BMW with the Applicant and his brother yelling at the victim “we’re going to get you”. The victim in the Ford approached a set of traffic lights and was stationary. The BMW pulled up next to the Ford and both cars were stationary. The victim saw the Applicant exit the BMW and run towards him. Without warning the Applicant punched the victim a number of times to the head. The victim picked up a crowbar from the boot of his car and swung it towards the Applicant’s brother. The Applicant then ran back towards the victim and both the Applicant and his brother continued punching the victim on the head a number of times. The Applicant’s brother pulled the victim onto the ground and pulled the crowbar from him. The Applicant then punched and stomped on the victim’s head while he was lying on the ground and the Applicant’s brother Samuel then hit the victim across the head with a crowbar twice whilst he was still on the ground. Both accused got back inside the BMW and drove off. The victim was stumbling on the road with his face covered in blood. He got back in his car and drove off. The victim was admitted to Liverpool Hospital and remained there for 7 days following the injuries that he received as a result of the assault. The victim suffered an open deep skull fracture for which he underwent a craniotomy and titanium cranioplasty. Medical imaging determined that the deep skull fragments remained from the fracture and a further craniotomy was performed. The victim suffered a 15mm vertical wound in the middle of his forehead and 7cm horizontal wound above the right ear. Witnesses to the offending indicated that there was a high volume of traffic in the area at a time and witnesses contacted 000 to report the offending telling the operator that “there is blood pouring from the guy’s head, he’s got blood all over his face. They just beat him up with a stick”.
As a consequence of the road altercation and assault, on 12 April 2021, the police attended the Applicant’s residence in Penrith for the purpose of executing a search warrant. The Applicant was present in the house and placed under arrest and handcuffed. His then 8-year-old daughter was located in the upstairs bedroom and there were no other occupants in the house at the time.
The following items were located during the search which included four clear bags containing methamphetamine which were sitting on top of a T-shirt on the bathroom floor. The methamphetamine totalled 312.6 grams and had a purity of 79%. Police found a ripped clear bag in the bathroom sink with the residue of the crystal substance. The dark grey BMW involved in the road incident was parked outside the house. BMW car keys were on a coffee table and the registration papers for the BMW were also located.
Police whilst searching the residence with respect to the traffic incident and assault found a bag in the kitchen containing $123,700 in cash and the police also found clothing and footwear that was consistent with clothing worn by the Applicant during the road assault. The police downloaded images from the Applicant’s brother’s phone which depicted a photograph of the Applicant’s brother Samuel with a caption saying “when you break your knuckle on some dumb fat fob from a road rage now he is in hospital with the fat face and broken nose aww dickhead” and another photo of the Applicant’s brother Samuel with a caption saying “couldn’t touch me? Aww poor thing”.
PSYCHOLOGISTS REPORT FROM MR SAM ALBASSIT
Mr Albassit’s report can be located in the tender bundle at TB41 pages 147 to 159. Mr Albassit prepared the report with respect to the Applicants offending for the purpose of the District Court proceedings. His report is dated 7 November 2022.
The report makes references to the Applicant’s background and notes that at the time of the preparation of the report the Applicant was 27 and his daughter was 10 years old. The report notes that the Applicant’s mother was alive, but father was deceased, having passed away in August 2022 as a result of a number of major health complications. The report notes that the Applicant has five siblings.
The report notes that the Applicant reported his childhood to be difficult and traumatic and that his late father was abusive and violent towards him and his siblings. The report notes that because of the Applicant’s troublesome behaviour at home and at school that at the age of 13 he was sent to Tonga for five months to attend boarding school. The report notes that the Applicant continued to struggle with his behaviour both at home and at school when he returned to Australia at the end of 2007.
The Applicant advised that he was sexually active from a young age which angered his parents because of their strict religious beliefs. At age 15 whilst homeless, he couch surfed at friend’s places, his girlfriend’s house and on the streets. During this period the Applicant was associating with anti-social people and continued to find himself in trouble. The Applicant described struggling with his mental health. The Applicant stated that his partner fell pregnant when he was 17 years old. The Applicant continued to pursue his final year of high school whilst working odd jobs to try to survive and support his partner and their child.
The Applicant described a deterioration in his mental health at age 18 and that he became a recluse and experienced suicidal ideation after the collapse of his relationship with his partner and a lack of ability to see his infant child.
During this period the Applicant described a continued association with an antisocial crowd. The Applicant recited an incident when he was 22 in which he was the subject of an altercation that led to him suffering a fractured jaw. Due to violence that the Applicant experienced at this stage of his life he reported becoming anxious about being out in public. The Applicant stated that in 2017 his father’s health deteriorated and he needed to step up and obtain more stable employment to provide support to his family and to his young daughter. The Applicant described becoming involved in a toxic relationship. The Applicant turned to illicit substances to cope with his mental health. The Applicant experienced difficulties during the global pandemic, at which time he lost his employment leading to a period where he was abusing illicit substances and that “he elaborated upon this by advising he agreed to store the drugs and money within his premises for a few nights on the basis he would receive financial compensation for his involvement”.
Mr Albassit undertook a range of psychological testing which is described in detail in his report. At page 153 of his report Mr Albassit refers to the Applicant’s symptomatology at that time. The report notes that the Applicant had been suffering with complex post-traumatic stress disorder for most of his life and was also exhibiting symptomatology of substance dependence for approximately four years.
The Applicant experienced a significant amount of trauma from a young age and was subjected to physical assaults, displacement, and neglect. Mr Albaissit at page 153 of his report notes that childhood trauma can lead to problems with a person affecting regulation, impulse control, and coping with stressors later in life. The report noted that the Applicant suffered with low mood.
The report at page 154 notes that substance abuse causes chemical imbalances in the brain and can lead to instability, mood swings and low self-esteem and self-confidence.
The report notes that the Applicant was remorseful for engaging in his offending behaviour and was willing to explore the relationship between significant trauma, illicit drug use and his offending behaviour and the causal link between them.
The report notes at page 156 that the Applicant had recently engaged in psychological therapy and had completed four consultations and planned ongoing treatment. The report notes that the Applicant was willing to engage during the psychological assessment with Mr Albassit, and comments that the Applicant had a “high level of insight in relation to the consequences of his actions lends itself that Mr Tonga’s prospects for rehabilitation is positive should the court provide him with the opportunity”.
The report notes that the Applicant had not previously addressed chronic mental health issues and had lacked guidance, support and structure that would enable progress. The report notes that the Applicant had been abstinent from the use of substances for approximately 12 months and that if the Applicant was to engage in psychological therapy, pharmacotherapy and make significant lifestyle changes that he would continue to make substantial progress with respect to his treatment.
The report notes that it normally takes up to 24 months of intensive therapy to treat post-traumatic stress disorder in order to achieve optimal results.
With respect to a treatment plan the report notes at page 157 that the Applicant should continue to receive psychiatric and psychological counselling to assist with treatment of his post-traumatic stress disorder and substance dependence, further to this that the Applicant should engage in an anger management program through the Blue Horizon Counselling Service.
In conclusion, Mr Albassit notes that the Applicant had expressed willingness and a desire to participate in psychiatric and psychological therapy going forward and that Mr Albassit would undertake to manage the Applicant’s treatment plan and would notify the District Court should the Applicant not comply with a treatment plan.
SENTENCING IN THE PARRAMATTA DISTRICT COURT
The Tribunal has had close regard to the sentencing comments of Judge Buscombe in the District Court of New South Wales sitting at Parramatta.
The judge makes reference to the offending. The judge notes the first offence occurred on 5 March 2021 at Hassall Grove. The Applicant in the company of his brother Samuel recklessly caused grievous bodily harm to the victim an offence under s 35(1) of the Crimes Act 1900 (NSW). The second offence occurred on 13 April 2021 at Penrith namely that the Applicant supplied a prohibited drug 312.6 g of methylamphetamine, being an amount not less than the commercial quantity of that prohibited drug an offence under s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The third offence also on 13 April 2021 at Penrith was the Applicant possessed the proceeds of crime, namely, $123,700 in cash, knowing that cash to be the proceeds of crime, an offence under s 193B(2) of the Crimes Act 1900 (NSW).
With respect to the first offence the agreed facts were that shortly after 5pm on 5 March 2021 the victim was driving along Luxford Road in Hassall Grove and the Applicant and the co-offender his brother Samuel Tonga were travelling on the same road. The victim and the offenders were not known to each other. The judge notes that:
“the victim and the offenders were involved in a minor verbal disagreement after each vehicle cut in front of the other. A short distance later, the victim stopped at a traffic signal in the right-hand lane. The offender’s vehicle, which was clearly driven by another person, similarly stopped in the left-hand lane and slightly behind the victim’s vehicle. The following was captured on dash cam footage from the vehicle immediately behind the victim’s vehicle in the line of traffic. Thomas Tonga, this offender, got out of the passenger side of the vehicle he was in, and he was wearing a black puffer style jacket. At the same time or approximate to that time, the victim got out of his vehicle and made his way to the rear of the vehicle. The offender Thomas Tonga moved in front of the victim’s car and approached the victim from the driver’s side. The victim opens the boot and grabbed a broomstick. Samuel Tonga, the co-offender, approached the victim from behind wearing a white shirt. In these agreed facts, he tackles the victim from the left-hand side and punches the victim a number of times. While this is occurring, the victim grabs a crowbar and swings it at Samuel, missing him. The offender Thomas runs around the front of the victim’s car approaches the victim and Samuel Tonga. Both offenders punch and wrestle the victim who is still armed with a crowbar. The victim is thrown to the ground, landing at the side of his vehicle. This offender Thomas Tonga punches the victim to the head and then kicks him in the head while the victim is on the ground. Samuel Tonga grabs the crowbar and strikes the victim twice to the head. Both offenders then get back into the BMW and drive away. The victim appears to throw the crowbar at the BMW as it drives away.… The offence lasts for about 45 seconds in total”.

In terms of the agreed facts in relation to the supply or prohibited drug offence and the proceeds of crime offence the judge notes that:
on 13 April 2021 when the police executed a search warrant at his premises in relation to the grievous bodily harm offence, police forced entry into the premises. The offender was seen to be leaving the bathroom, he was cautioned and placed under arrest. When the police searched the offender’s home, they located four clear bags containing a substance later analysed to be 312.6 g of methylamphetamine with the purity of 79%, which was sitting on top of the T-shirt in the bathroom. Those facts essentially constitute the supply prohibited drug offence. One ripped clear bag in the bathroom sink contained a residue of a crystalline substance. There was a bag in the kitchen containing $123,700. There was a banknote counter. There were three mobile telephones, the particulars of which are in the agreed facts. Those facts are what support the other two offences”.
Judge Buscombe turned to the assessment of the objective seriousness of the offending firstly, with respect to the recklessly cause grievous bodily harm in company offence. Judge Buscombe noted that:
the offender’s involvement in this offence appears to have been relatively impulsive. The agreed facts are essentially to the effect that what triggered the actions of this offender, and the co-offender was a minor verbal disagreement after each vehicle had cut in front of the other. The offence is one which is often classified as a road rage incident, something that happens far too frequently in our community. While the offence was of short duration, some 45 seconds, the offence was a particularly violent one. In my opinion, the principles associated with sentencing someone involved in a joint criminal enterprise are Applicable here, each offender is therefore responsible for the overall offence but is primarily to be sentenced for what he did during the joint criminal enterprise. The offender Thomas Tonga approached the victim by running across the front of the victim’s car and around to the driver’s side. He appears to be trying to surprise the victim with his attack. He, together with the co-offender, wrestle and throw the victim to the ground. While the victim is on the ground, it is this offender who punches and kicks the victim to the head. It is the co-offender who struck the victim twice to the head with a crowbar, having wrestled it off the victim. Given the opinion of Dr French contained in the agreed facts for this offender, I could not find beyond reasonable doubt that it was this offender’s blows that caused the more significant of the head injuries, suffered by the victim, and I have had some regard to that in my assessment of the objective seriousness of his offence”.
Judge Buscombe considered the objective seriousness of this offence to be “a little below a notional mid-range offence”.
With respect to the objective seriousness of the supply prohibited drug and proceeds of crime offences Judge Buscombe noted that:
the amount of drug involved in the supply prohibited drug offence is always a relevant but not determinative factor when imposing sentence for such an offence. Here the drug was 312.6 grams of methylamphetamine with a purity of 79%. The drug was of a relatively high grade of methylamphetamine. The quantity was approximately 62 grams over the commercial quantity but well under the large commercial quantity. In the subjective material, which I will shortly discuss, the offender asserts that he was simply minding the drugs and the cash for another person and had done so for only a few days. The offender did not give evidence on sentence so this account of his involvement in those offences could not be tested under cross-examination. The presence of the $123,700, a banknote counter, and three mobile phones results in me being unable to find on the balance of probabilities that the offender’s role in the offences was as limited as he asserted to others and is recorded in the subjective material. As is often the case in such cases, I am unable to have any degree of certainty about the offender’s role in the drug supply offence.
Judge Buscombe when assessing the objective seriousness of the supply prohibited drug offences found it “as being below a notional mid-range offence insofar as objective seriousness is concerned but not at the bottom of the range.… I assess it also to be below a notional mid-range offence but not at the bottom of the range”.
With respect to Judge Buscombe’s assessment of the Applicant he noted that the Applicant was at the time of sentencing “27 years of age, a relatively young man, being 26 as at the date of the offences, but not within the category of offender sometimes described by the criminal law as a young adult offender. He has a limited criminal history, essentially some relatively minor traffic offences, and there are no prior offences of violence or drug -related offences. His lack of a criminal record entitles him to leniency on this sentence. He committed the offences while on a conditional release order, being a form of conditional liberty, and that is an aggravating factor on sentence”.
Judge Buscombe noted that “no oral evidence was called from for on behalf of the offender, so his assertions as to why he engaged in the offending and in relation to his commission of the drug and proceeds of crime offences remain untested”.
The sentencing report makes reference to the Applicant’s family background based on a psychological assessment of the Applicant for the purposes of the court proceedings conducted by Mr Albassit, psychologist.
That information from the sentencing report indicates that an assessment of the Applicant by Mr Albassit indicates the Applicant as describing his childhood as “difficult and traumatic”. The Applicant stated that he was physically abused by his father (a church Pastor) from aged 9 and that he experienced a lot of violence in the family home that his mother did her best to shelter him from.
The sentencing report indicates that the Applicant was sent to live in Tonga for a period of time and that when he returned to Australia in 2007, he engaged in an intimate relationship at aged 14 and was “kicked out” of his family home and spent time couch surfing at friends’ homes and lived for a time on the street. The Applicant described to the psychologist being attacked at school by a group of 15 people during which time his head was stomped on, and his ribs were bruised, and that after this attack he suffered from mental health issues. By 18, the Applicant experienced suicidal ideation and after the significant assault he experienced he became hypervigilant and anxious in public.
The sentencing assessment report prepared for Judge Buscombe indicated that the Applicant had partial custody of his then 10-year-old daughter (now aged 12) and had a supportive family unit many of whom were in court for the Applicant’s sentencing in the District Court.
The sentencing report notes that the Applicant reported to the psychologist that he faced financial difficulties during the period leading up to the offending as a result of losing his employment and that at this time he was using illicit substances. The Applicant told the psychologist that “he committed the drug supply and proceeds of crime offences with a view to addressing his financial difficulties. The offender told the psychologist that he agreed to store the drugs and money for a few nights on the basis that he would receive financial compensation for his involvement”. The Applicant described to the psychologist that in 2017 his father became ill, and that he was in a toxic relationship and that he turned to illicit substances, starting initially with cannabis but progressing to cocaine which became a daily habit. The sentencing report notes that as a consequence of the breakup of the toxic relationship along with the deterioration in his father’s health that the Applicant “developed a maladaptive pattern of substance abuse”.
Judge Buscombe notes that Mr Albassit administered a battery of psychological tests upon the Applicant and the sentencing report notes that these reports “placed him in the severe range of depression, anxiety and stress”.
Mr Albassit determined that the Applicant’s diagnosis was “consistent with a dual diagnosis of complex post-traumatic stress disorder and mixed anxiety and depression” and indicative of symptoms of a substance abuse disorder. Mr Albassit determined that underlying the Applicant’s violent offending was the Applicant’s expressed feelings of hypervigilance and that with respect to the drug related offending “the offender’s substance dependence and mental health more generally clearly was the genesis of that offending”. At the time Mr Albassit prepared the report for the District Court, it was noted that the Applicant had not engaged in illicit substances for 12 months.
It is noteworthy that in the absence of the Applicant being subject to cross-examination at his District Court trial Judge Buscombe noted that “I have not on balance, accepted the explanation of the offender’s role in the supply prohibited drug and proceeds of crime offences”.
Judge Buscombe noted that the Applicant did express to the psychologist his remorse and shame for engaging in the offending and his significant remorse and contrition with respect to the victim of the violent offending. Judge Buscombe noted that the sentencing assessment report prepared for the District Court indicated that the Applicant did not consider himself to be an aggressive person and that with respect to the violent offending he acted impulsively. Judge Buscombe noted that in a letter that the Applicant provided to the District Court he expressed his remorse for the offending.
With respect to views about the risk of recidivism and prospects of the Applicant’s rehabilitation Judge Buscombe noted that “the offender is still relatively young and has a limited criminal history. He has a supportive family. I consider that in these circumstances he has good prospects of rehabilitation. Much will depend upon his ability to stay away from prohibited drugs in the future. Given the number of offences within a short period of time and his issues with prohibited drugs, I am not able to make a finding that he is unlikely to reoffend. This will be his first time in custody, and while he has good prospects for rehabilitation, those prospects for rehabilitation will be enhanced if he has a longer period on parole. I would therefore make a finding of special circumstances when fixing the non-parole period”.
APPLICANTS RESPONSES TO DEPARTMENT
The G documents before the Tribunal includes the Applicant’s then representative’s submission made to the Department with respect to consideration of revocation of the cancellation of the Applicant’s visa. The submission dated 22 August 2023 was made by Mr Mohamed Al-Fadhi a solicitor and migration agent with the Macquarie Law Group and is referable to Ministerial Direction 99 that was Applicable at the time the submission was made.
The submission notes that it was conceded that the Applicant did not pass the character test based on the fact that the Applicant had a substantial criminal record.
With respect to the exercise of discretion the submission concedes that the offending that grounded the cancellation of the Applicant’s visa was serious and weighed against the revocation of the cancellation.
The submission notes that there are a number of factors that would mitigate the risk of re-offending and risk to the safety of the Australian community.
These factors include the fact that the visa cancellation would act as a deterrent against future offending along with the substantial period in which the Applicant had been incarcerated as a consequence of his offending, another strong deterrent against re-offending. Further to these factors the fact that the Applicant had a stable home, the support of his mother and siblings and a number of close relatives. The risk was further mitigated by the fact that the Applicant had expressed remorse for his offending and taken full responsibility for it.
With respect to primary consideration 2, namely whether the Applicant had engaged in conduct that constituted family violence, the submission noted this consideration was not Applicable in this case.
With respect to primary consideration 3, the strength, nature and duration of ties to Australia the submission notes that the Applicant arrived in Australia at the age of 3 and had lived, studied and worked in Australia for about 26 years. The submission notes that the Applicant continues to maintain substantial ties to the Australian community and that all of his family members are in Australia. The submission states that it would cause the Applicant significant hardship if he were separated from his immediate and his extended family. Further to this the Applicant’s removal would impact social and familial ties with respect to his daughter, mother, and siblings, and that this weighed significantly in favour of the revocation of the Applicant’s visa cancellation.
With respect to primary consideration 4, best interests of minor children in Australia affected by the decision, the submission makes reference to the considerations in Direction 99 that was Applicable at the time of the submission, noting that at that time the Applicant had an 11-year-old daughter in Australia and that he used to spend a lot of time interacting with her prior to his incarceration. The submission notes that the Applicant has a number of cousins, uncles and aunts who have Australian children who have a meaningful relationship with the Applicant. The submission posits that this consideration weighs strongly in favour of the revocation of the Applicant’s visa cancellation.
With respect to expectations of the Australian community the submission makes reference to the relevant factors that are required to be had regard to by decision-makers and notes that “decision-makers should proceed on the basis of the government’s view as articulated above, without independently assessing the community’s expectations in the particular case”.
With respect to the legal consequences of the decision the submission notes that the Applicant wishes to raise international non-refoulement obligations for consideration in his case. The submission notes that decision-makers are required to consider the extent of any impediments that a non-citizen may face if removed from Australia to their home country in establishing themselves in their home country and maintaining basic living standards in the context of what is generally available to other citizens of that country.
With respect to the impact on victims of the Applicant’s offending, the submission notes that the Applicant concedes that this consideration weighs in favour of non-revocation of the visa cancellation, however, posits that it is unlikely that the Applicant and the victim of the offending will ever cross paths again. With respect to the impact on Australian business interests the submission notes that this consideration was not of relevance.
In conclusion the submission notes that the Applicant is remorseful for his offending behaviour, is regretful of his past conduct, and is keen to start anew with the primary focus on his daughter and his family. The submission posits that when considered in conjunction with the Applicant’s family support, social ties and other incentives not to reoffend that the Applicant’s risk of reoffending is highly improbable. The submission notes that consideration should be given to the Applicant’s strong connection to the Australian community, given that he had spent most of his life living in this country, and once again restates the impact that the Applicant’s removal from Australia would have on his immediate and close family members. The submission concludes by positing that the considerations for favouring cancellation and those against the revocation of the Applicant’s visa cancellation are finely balanced, however, the considerations favouring revocation of the visa cancellation slightly outweigh those considerations with respect to affirming the cancellation decision.
The Applicant also provided a submission to the Department in a request for further information which addresses Direction 110 and is dated 18 November 2024. Mr Carlos Lindo from the MacArthur Law Group, his current representative, provided the submission. The submission notes the following.
With respect to the relevant primary considerations under Direction 110 the submission notes that with respect to protection of the Australian community from criminal and other serious conduct, that the Applicant acknowledges the seriousness of his offending, however, the submission notes that the Applicant’s criminal record is not a lengthy one and that the likelihood of reoffending is limited. The submission notes that the Applicant had been incarcerated for an extended period and was remorseful for his offending.
The submission notes that with respect to primary consideration 2 the Applicant had not engaged in conduct that constituted family violence.
With respect to primary consideration 3, the strength, nature and duration of ties to Australia the submission notes that the Applicant had resided in Australia since the age of 3 and that his immediate family resided in Australia and that his partner resided in Australia.
With respect to the best interests of minor children in Australia, the submission notes that the Applicant has a 12-year-old daughter whom he saw regularly prior to his incarceration, and that in the event that the Applicant is deported his daughter will be deprived from having a meaningful relationship with her father.
With respect to expectations of the Australian community that a decisionmaker is required to look at the evidence in the individual case and that a decisionmaker must examine, assess, and evaluate factors for and against revoking. The submission acknowledges that the Applicant is aware that the Australian community’s expectations would be to uphold Australian values and respect for the law.
The submission makes reference to a number of authorities with respect to the assessment of whether a person is a danger to the community.
The submission makes reference to a range of protective factors which would mitigate the risk of future offending and ensure that the Applicant remains crime free, including a stable home environment, a supportive mother and partner, supportive siblings and the support of other close relatives and community members. To this extent reference is made to all of the letters of support and references provided in support of the Applicant.
With respect to the Applicant’s removal to his home country of New Zealand the submission notes that decision-makers need to consider impediments that a non-citizen may face if they are removed to their home country in establishing themselves and maintaining basic living standards and the submission posits that the Applicant would face substantial difficulties if he was returned to New Zealand and separated from his daughter and family.
The submission posits that the Applicant does not pose a danger to the community and that the Applicant had taken active steps to prevent him from engaging in reoffending including counselling, drug rehabilitation and working closely with his parole officers. The submission notes that the Applicant aged 29 had been resident in Australia from a young age, was in a de facto relationship of almost 3 years duration and had contributed to the community through his employment prior to being incarcerated. The submission notes that with respect to the seriousness and nature of the crimes committed that once again the Applicant acknowledges the seriousness of his offending but further notes that he did not have a lengthy criminal history. The submission notes that the Applicant was sentenced to 3 years and 7 months imprisonment and that he served 26 months before he was granted parole. The Applicant also had a difficult upbringing with his father being absent from his life during his formative years and that this led to the Applicant being diagnosed with depression. The submission notes that the Applicant had a limited criminal history, that the offending did not take place over an extended period of time and that the Applicant had been assessed as having a low risk of re-offending and that there was no likelihood of the Applicant relapsing into criminal behaviour. The submission notes that the Applicant whilst detained had engaged in a number of courses and activities to assist with his rehabilitation. The Applicant upon returning to the community wishes to pursue a career as a carpenter and as a personal trainer. In terms of the protective factors in existence that mitigate the risk of reoffending the submission notes that the Applicant comes from a stable home, that he has a supportive mother and partner, supportive siblings and a number of the close relatives and members of the community that support the Applicant.
APPLICANTS STATEMENTS

The Applicant has provided an undated statement at G15 pages 108-109. The Tribunal has had regards to the contents of that statement.
The Applicant at the time of the provision of this statement was 29 years old. The Applicant advised that he was one of six siblings and that he was the proud father to a 12-year-old daughter. The Applicant stated that to the best of his memory he had a happy childhood with his father working as a mechanic and his mother working as a nurse. The Applicant advised that both of his parents were pastors in the local church and that the church played a central role in family life. The Applicant stated that because of his father’s pastoral duties that his father was often required to travel internationally leaving his mother to raise the children on her own.
The Applicant stated that without a consistent father figure in the family home that as a teenager he began to make poor choices, hanging round with the wrong crowd, skipping school, getting into fights, and experimenting with alcohol and drugs. The Applicant advised that when he was 17, his partner at the time became pregnant with his daughter whilst he was still at school. Despite the stress of this predicament, the Applicant completed his high school certificate and then undertook factory work to support his daughter and his immediate family. The Applicant stated that around this time his father was diagnosed with type II diabetes and that his mother had to abandon work to become a full-time carer for his father.
The Applicant stated that his greatest regret looking backwards with respect to his offending behaviour is the time that he has lost with his family, friends, partner and especially his daughter.
The Applicant stated that during the period that he was in custody that he was committed to self-development and that he completed a number of courses, attended regular Sunday church services and individual sessions with the prison chaplain which he claims have strengthened both his faith and his personal growth.
The Applicant outlined that upon returning to the community his primary goal is to pursue a career as a qualified carpenter with a long-term objective of obtaining a builder’s license. The Applicant stated that his passion to pursue this career was inspired by undertaking work on demountable houses whilst he was an inmate at the Glen Innes Correctional Centre. The Applicant stated that in addition to this he wanted to earn qualifications as a personal trainer to support both his community and his family with their respective health and fitness and that this had been inspired by observing his father’s debilitating struggle with diabetes. In conclusion the Applicant states that “I am determined to use the lessons I’ve learned to create a better life for myself, my family, and those around me. My past does not define me, and I am committed to giving back to the community and being a positive role model for my daughter”.
The Applicant also provided a statement to the Tribunal dated 11 February 2025 in support of his Application for review which the Tribunal has duly considered.
In the statement the Applicant states that he wanted to express “what thoughts are going through my mind these days while in detention and waiting for the Tribunal hearing”.
The Applicant states that he did not dispute the factual findings that had been made by the delegate with respect to the events surrounding the cancellation of his visa.
The Applicant also stated that he wished to claim privilege against self-incrimination and that he did not “intend to answer any questions on what took place in relation to the crimes that I was convicted of”.
The Applicant conceded that he had been found guilty of three offences 1) causing grievous bodily harm to a person, 2) supply drugs of commercial quantity and 3) knowingly deal with the proceeds of crime.
The Applicant stated that he had spent many hours going over the offending that led to him being imprisoned and facing the possibility of deportation.
With respect to the assault causing grievous bodily harm, the Applicant stated that the road rage incident was “stupid, dumb and unforgivable”.
With respect to the Applicant being found in the possession of drugs and cash the Applicant stated that he did not want to go into further detail about this element of the offending claiming privilege against self-incrimination.
The Applicant stated that he can understand the problem that the Australian government faces in having to protect its citizens from non-citizens and permanent residents that compromise safety because of criminal offending.
The Applicant stated that he realises that if he was to get back into drug use again, that it will inevitably lead to imprisonment irrespective of which country he was living in.
The Applicant stated that he has a wonderful daughter who still loves him despite the shame and fear that he created as a consequence of his offending. The Applicant stated that his former partner fell pregnant with their daughter when the Applicant was only 17 years old. The Applicant stated that after the breakdown of his relationship with the mother of his daughter that he maintained regular contact with his daughter over most weekends. The Applicant stated that prior to his incarceration he was spending more time with his daughter, and that she would reside with him for a week at a time and that the arrangement with respect to care became over time a 50/50 arrangement.
The Applicant stated that when he was first incarcerated that his daughter was very upset about them not being together and that she withdrew, however there has been a resumption in their relationship and his daughter now speaks with him on a regular basis. The Applicant stated that he is committed to providing for his daughter’s well-being both financially and ‘otherwise’.
The Applicant stated that he had a close relationship with his mother and that he lived with her for a period of time. The Applicant stated that when he was not living with his mother he would visit her twice a week, take her shopping for groceries and provide some financial support. The Applicant stated that prior to his incarceration he would provide emotional support to his mother.
The Applicant talked about the relationship that he has with his current partner Savannah. The Applicant stated that being separated from his partner had affected him both mentally and emotionally. The Applicant stated that Savannah has shown great love and commitment to the relationship despite his offending. The Applicant stated that a goal for the future would be listening more closely to his partner and respecting her opinions.
With respect to the Applicant’s sister, he advised that he spent a lot of time with her and stated that his daughter is very close to her cousins. The Applicant described having a close relationship with his brother-in-law.
The Applicant stated that he had engaged in a number of rehabilitation programs whilst he was in custody including lifestyle programs, core skills, an information technology course and studies in construction and food safety. The Applicant stated that he had also participated in Narcotics Anonymous and would attend sessions on a weekly basis for the 19 months that he was in prison.
The Applicant identified some of the learning as a consequence of attending these courses. The Applicant stated that he had learnt to control his emotions and was more cognisant of his environment. The Applicant had learnt techniques with respect to avoiding conflict situations and had learnt breathing techniques to assist with stress.
On reflection the Applicant stated that he has given thought with how to deal reasonably with other drivers on the road in the future. The Applicant stated that he has benefited from talking to a psychologist and opening-up about his feelings and past trauma.
The Applicant stated that he would like to apologise to the victim of his offending for the physical and emotional pain that he caused the victim and his family.
The Applicant stated that with respect “to the Australian government that is concerned that in the future I may get involved in violence against others, start dealing with proceeds of crime will get into drug supply and drug use I would like to say that I now know that actions like I carried out, are very dangerous and harmful to the society. I realise that the consequences for my family were enormous”. The Applicant’s statement is indicative of genuine self-reflection.
The Applicant stated that his partner, Savannah, is successful and earns a decent income and has been a positive influence on him. The Applicant stated that “the two most important lessons are firstly the due to my actions I almost lost everything that is dear to me, my whole family. Secondly, once you cause physical harm to another person, you cannot take back the damage that was caused, and you can’t remove the consequences of your actions”.
APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS (SFIC)
The Applicant provided a SFIC dated 13 February 2025 and a supplementary SFIC which is dated 24 February 2025. Both these documents have been duly considered by the Tribunal.
The SFIC of 13 February 2025 makes reference to the fact that on 14 November 2022 the Applicant was convicted in the District Court of New South Wales Parramatta with knowingly deal with proceeds of crime, causing grievous bodily harm to a person, and intent and supply prohibited drug commercial quantity. The Applicant was sentenced to an aggregate term of imprisonment of three years and seven months. The term of imprisonment included a non-parole period of two years and two months and the sentence commenced on 19 August 2022 and the non-parole period expired on 18 October 2024. The Applicant was paroled on 18 October 2024 at which time he was taken to immigration detention at Villawood.
The submission notes that the Applicant’s visa was cancelled under s 501(3A) by a delegate of the Department on the basis that the Applicant did not pass the character test because of the operation of s 501(6)(a) (substantial criminal record). The submission notes that on 23 December 2024 a delegate of the Minister decided not to revoke the cancellation of the visa.
The submission notes that documents were produced by the Department of Community and Justice (DCJ) as a consequence of a summons served by the Tribunal on 29 January 2025. The documents provided by the DCJ indicated that there was no information with respect to adverse incidents involving the Applicant during his incarceration at various prisons. There was no incident in which the Applicant was found to use drugs. There was an entry dated 9 September 2023 which states ‘refuse failed drug sample’. Reference is made in these documents to educational courses undertaken by the Applicant during his period of imprisonment. The documents referred to a classification history with a reference to work release and minimum-security. The documents also show a long list of visitors who visited the Applicant in prison.
The submission takes umbrage with the decision of the Departmental delegate. The submission at points 18-48 makes reference to what the submission posits were errors in the delegates decision-making.
Point 49 of the submission makes reference to ‘new information’ from several sources received as a consequence of summonses issued which the submission posits “are significant and favourable to the Applicant’s case before the Tribunal and which the delegate did not have before them.
This information was information received from DCJ, Healthcare Australia, the Department, and a report prepared by SERCO who oversee the Villawood Detention Centre. The submission notes that “it is significant that the Applicant has not had any adverse incident during the 26-month period that he was in prison”.
In addressing the ‘refuse failed drug sample’ the submission notes that on the day of the incident, 9 September 2023 that the Applicant was asked by authorities to produce a urine sample straightaway without notice, however the Applicant advised that he could not do that straightaway, but he did not refuse to provide it. The submission notes that “it appears that the rule was that if he cannot provide it straightaway it is taken as refusal to provide. Under that circumstance we submit that it should not be considered adversely to the Applicant as if he had refused to provide a urine sample”.
The submission makes reference to courses undertaken by the Applicant whilst in prison which the submission notes the Applicant enthusiastically embraced to enable him to enhance his skill set and to assist with employment when released back into the community.
The submission notes that material obtained from Healthcare Australia indicated that there was no evidence of any mental health issues with respect to the Applicant. The submission notes that the Applicant was only detained in Villawood Detention Centre on 18 October 2024 and on that basis the report from SERCO largely dealt with future strategies to deal with the Applicant and assist him during his period of detention. The SERCO report at page 14 notes that the Applicant “appears to be an individual who is self-reflective of his behaviours and has proactively attended numerous courses and programs during his time in corrections and is continuing to further develop and educate himself whilst in immigration detention to address his behaviours of concern”.
The submission notes that there are a number of observations in the report from the detention centre indicative of the Applicant’s positive attitude.
The submission makes reference to evidence from key witnesses provided to the Tribunal in support of his review Application. This includes statements from the Applicant, a statement from the Applicant’s de facto partner, a statement from the Applicant’s daughter, a statement from the Applicant’s former partner and the mother of his child, a statement from the Applicant’s mother, a statement from the Applicant’s sister and a statement from a prospective employer.
The submission notes that the Tribunal on the basis of the evidence before it should make the following conclusions. That the Applicant has used his time in prison and immigration detention productively to reflect on his past and prepare himself to be a useful resident of Australia going forward. That there has been no reported drug use by the Applicant since his incarceration. That the Applicant has demonstrated remorse and rehabilitation. That the delegate made legal errors dealing with violence perpetrated by the Applicant with respect to the offence of grievous bodily harm with intent.that the delegate legally erred with respect to how they used media articles in the decision. That the delegate erred with respect to overall consideration of whether there is another reason to revoke the cancellation of the visa.
The submission notes that these conclusions should be made on the basis of the fact that there have been no incidences of aggression or other adverse incidences either in prison or in immigration detention. That the Applicant has strong support from his family especially his de facto partner and his daughter. While the Applicant initially lacked insight into the harm caused to the victim of his offending, he has reflected considerably about this and tried to understand things from the victim’s perspective. That the Applicant has the potential to obtain employment if he is released into the community to enable him to get on with leading a productive life. Once again reference is made to deficiencies in the delegate’s reasoning and evidence relied upon for the purposes of the Departmental decision.
The supplementary SFIC makes reference to what is submitted are four important documents that the Applicant wished to highlight from the returned DCJ summons. The DCJ documents of particular importance were those at pages 4-48 dealing with the Applicant from when he was taken into custody on 10 August 2022. The Tribunal has had due regard to these documents which relate to the Applicant’s inmate profile report, regular case note reports whilst the Applicant was in prison along with the Applicant’s education file, and community corrections report.
The case note reports indicate that the Applicant’s behaviour whilst in prison was largely positive. The submission also notes that the Applicant had used the period of imprisonment to reflect on his offending and that he expressed remorse for his offending behaviour. The submission also notes that the Applicant used his time in prison to gain skills in the construction sector that would be directly Applicable in assisting him to find employment when he re-entered the community.
The submission notes that the key reasons for the Applicant’s parole from prison was based on the fact that the Applicant had maintained a mostly positive record whilst incarcerated, there were minimal interventions available to him in custody, and the ongoing cost to the community of his continued incarceration. The submission notes that “Mr Tonga appears to have spent his time in custody appropriately utilising it to gain skills in the construction sector. He verbalises regret for his behaviour and concern for his victim as well as expressing a pro-social attitude, however, further clarification around these values would be beneficial. It appears that his continued incarceration would have little benefit as he has minimal interventions available to him. It is not clear why the report says there is a medium risk of reoffending, as all other aspects seem to be positive. We respectfully submit that it does not necessarily show consistency with the overall information”.
The submission notes that over the course of the Applicant’s imprisonment that there were 23 visits to him in a 12-month period indicative of significant community support for the Applicant.
Reference was made to the 15-character references provided on behalf of the Applicant, which have been duly considered by the Tribunal, which showed the substantial community support that the Applicant has from his mother, sister, partner, daughter, and a number of other deponents.
The submission notes that 20 pages in the DCJ documents provide detail about the education and training programs undertaken by the Applicant whilst he was in prison to enhance employment prospects in the event that the Applicant is allowed to return to the community.
The submission posits that the critical question is “will the Applicant reoffend after release and engage in activities harmful to the Australian community”. The submission posits that the Applicant’s recent behaviour and his expressions of remorse are indicative of the fact that the Applicant has rehabilitated himself and has shown himself to be of good behaviour and to have been respectful to the authorities both in prison and in immigration detention. The submission posits that these attributes are indicative of signs that the Applicant would become a responsible and law-abiding resident in the event that his visa cancellation was revoked.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS (SFIC)
The Tribunal received the Respondents SFIC which is dated 26 February 2025.
The submission notes that the Applicant is a 30-year-old citizen of New Zealand and arrived in Australia as the holder of a Subclass 444 visa in 1998. The submission notes that the Applicant was convicted in the District Court of New South Wales with knowingly deal with proceeds of crime, cause grievous bodily harm with intent, and supply prohibited drug, commercial quantity, deemed supply, and possess prohibited drug. As a consequence, the Applicant was convicted to an aggregate term of imprisonment of 3 years and 7 months.
The submission makes reference to the cancellation history under s 501(3A) of the Act on the basis that the delegate could not be satisfied that the Applicant passed the character test and the decision made by the delegate not to revoke the cancellation decision made on 23 December 2024.

The submission notes that it is the Ministers contention “that there is not another reason that caries sufficient weight or significance to satisfy the Tribunal that the original decision should be revoked”.
With respect to primary consideration 1 the submission notes that the Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Furthermore, that decision-makers need to give consideration to the nature and seriousness of the non-citizens conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The submission notes that the Tribunal should have regard to the principle that the safety of the Australian community is the highest priority of the Australian government.
The submission notes that the Applicants offending comes within the ambit of violent crimes and makes reference to the District Court sentencing comments with respect to the Applicant’s offence of assault occasioning actual bodily harm.
The submission posits that a clear indicator of the seriousness of the Applicants offending is the fact that he was sentenced to a period of 3 years and 7 months imprisonment (aggregate term).
The submission posits that the Applicants offending is frequent and that there is a trend of increasing seriousness from the Applicant’s first offence in 2015, driving a motor vehicle whilst suspended, to his offending for which he was convicted on 14 November 2022, namely knowingly dealing with the proceeds of crime, causing grievous bodily harm to a person with intent and supply prohibited drug, commercial quantity, deemed supply and possession of a prohibited drug.
The Respondent submits that the nature and seriousness of the Applicants offending conduct must be viewed by the Tribunal as very serious, particularly, with respect to the violent nature of the Applicants offending. The Respondent contends that this fact weighs strongly in favour of not revoking the decision to cancel the Applicant’s visa.
The submission posits that the Applicant poses an unacceptable risk to the Australian community should he commit further offences or engage in other serious conduct. With respect to the Applicant’s drug offending the submission notes that with respect to the nature of the harm caused, that drug use and abuse involves physical and psychological harm to members of the Australian community through the supply of prohibited drugs. With respect to the assault conviction, that no doubt the victim of the Applicants offending would have suffered not only physical harm, but psychological harm, and that the evidence indicated that the victim underwent a craniotomy, an elevation of skull fracture, and a titanium cranioplasty.
The submission notes that the assault for which the Applicant was convicted occurred in the middle of traffic and in view of the public and that if this type of violence was to occur in the future the potential outcome could be catastrophic.
The submission makes reference to the deleterious effects of the drug trade on the community, particularly methamphetamines, the supply of which the Applicant was convicted. The submission makes direct reference to the societal harm caused directly and indirectly by illicit drugs.
The submission notes that the Applicant’s criminal record demonstrates that he has been involved in three instances of driving whilst his license has been suspended. The submission notes that the serious nature and adverse consequences of driving offences of this nature has been expressed in a number of cases such as the decision of SM Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561. On the basis of these repeat offences the submission posits that the Tribunal ought to find that such offending, if it was to be repeated by the Applicant, is so serious that any risk it may be repeated, is unacceptable.
The submission notes that the Applicant presents as a ‘medium risk’ of reoffending and notes that the Applicant’s drug offending occurred whilst he was subject to conditional liberty (a conditional release order). Collectively the Respondent submits that the Tribunal cannot be satisfied that the Applicant would not reoffend and overall, that primary consideration 1 weighs significantly against revocation of the visa cancellation decision.
With respect to primary consideration 2, namely family violence, the submission notes that there is no evidence before the Tribunal that indicates that this consideration is an issue and hence the consideration should be afforded neutral weight.
With respect to primary consideration 3 strength, nature and duration of ties to Australia the submission notes that the Applicant arrived in Australia in 1998 when he was three years old and that he has lived almost continuously in Australia over the intervening 26 year period. The submission notes that most of the Applicant’s immediate family members reside in Australia including his mother, sister and four brothers. The submission also makes reference to the many members of the Applicant’s family that have provided statements in support of the Applicant. The Respondent submits that primary consideration 3 weighs in favour of revocation of the visa cancellation decision.
With respect to primary consideration 4, best interests of minor children, the Respondents submission notes that the Applicant has one biological minor child, who is an Australian citizen and who will be affected by the non-revocation decision. The Respondent also acknowledges statements from the Applicant’s family that indicate that he has a number of nieces and nephews in Australia but notes however, that scant detail has been provided with respect to their names and ages, and the extent of the involvement that he has with them. The Minister contends that the Applicant’s violent criminal history has not to date provided a positive role model for his daughter and notes that the Applicants daughter was at his apartment when he was arrested by police for his involvement with the supply of drugs, hence, the Applicant putting his daughter directly in harm’s way. The Minister concedes overall that primary consideration 4 weighs in favour of revocation of the visa cancellation decision.
With respect to primary consideration 5, expectations of the Australian community the submission notes the prescriptive nature of this component of the direction and that given the severity of the Applicants offending to date that the Tribunal ought to conclude that the Australian community would expect that the Applicant should not hold a visa and that this consideration weighs significantly against revocation of the visa cancellation decision.
With respect to ‘other considerations’ they are dealt with in the Respondents submission sequentially. Firstly, the legal consequences of the decision. The Respondent notes that the Applicant would be liable to be removed to New Zealand and there is no indication that there would be any difficulty in the Applicant obtaining a travel document such that his detention would be prolonged. The submission notes that the Applicant has not made any claims which would require an assessment in relation to Australia’s international non-refoulement obligations.
In terms of the extent of impediments if removed the submission notes that the Applicant is 30 years old, there is no evidence that he is in poor health, that English is the main language in New Zealand, that there would be no cultural, linguistic, or lifestyle factors that would impede the Applicant adapting to life in New Zealand. With respect to ‘other considerations’ the Minister submits that slight weight should be given to these considerations in the Applicant’s favour.
In summary the Respondent submits of the 5 primary considerations that the Tribunal should find that the protection of the Australian community and the expectations of the Australian community weigh heavily against revocation of the cancellation decision and outweigh the other primary and ‘other’ considerations. The Respondent submits that given the seriousness of the Applicants offending that the Tribunal should conclude that these primary considerations outweigh all other relevant considerations. The submission notes that it is the Minister’s position that there is not another reason why the mandatory visa cancellation decision should be revoked and that the delegate’s decision to refuse to revoke the mandatory visa cancellation decision should be affirmed.
REVIEW HEARING
The Tribunal conducted a review hearing on 6 March 2025. The Applicant attended the hearing and was represented by counsel Mr Silva and his solicitor Mr Lindo. The Applicant’s mother, daughter, sister, current and former partner’s and a number of other relatives attended the review hearing. Ms Schultz from Mills Oakley appeared on behalf of the Minister.
At the outset of the review hearing the Tribunal noted that it was an independent review body. The Tribunal noted that its role was to consider the written and oral evidence before it and to determine whether there was another reason available to it to revoke the cancellation decision that had been made by the delegate. The Tribunal also advised the Applicant how the hearing would be conducted.
Mr Silva made an opening statement. Mr Silva noted the primary issue before the Tribunal was whether there is another reason to revoke the cancellation of the Applicant’s Subclass 444 visa having regard to the relevant considerations in Direction 110. Mr Silva noted that protection of the Australian community should be given primacy in weight and required consideration of whether the Applicant would reoffend and indeed the likelihood of the Applicant reoffending. Mr Silva noted that based on prison records, detention records, the Applicant’s engagement in courses whilst detained and the evidence of family members the chance of the Applicant reoffending was low.
Mr Silva noted that in order to assess the risk of violence in the future the Tribunal needed to consider whether the Applicant has a history of engaging in violence, reference to the Applicant’s bail history, reference to the Applicant’s behaviour in jail and in immigration detention and the Applicant’s contribution to violence in the road rage incident. Further to this the nature of rehabilitation undertaken by the Applicant to reduce the risk of violence along with testimony of family members. Mr Silva noted that the Applicant came from a close-knit family and suggested a positive influence from family members with respect to his conduct going forward.
Mr Silva noted that the Applicants offending on 5 March 2021, namely the road rage incident, in which the Applicant engaged in violent behaviour was a one-off incident of violent conduct. Mr Silva noted that after committing the offence the Applicant was bail refused. The Applicant Applied for Supreme Court bail which was granted to him on 8 July 2021 and that prior to the Applicant being sentenced in the District Court of Parramatta that he lived for one year and four months in the community whilst on Supreme Court bail. Mr Silva noted that there were no breaches of any bail conditions.
Mr Silva noted that another indicator of the Applicant’s likelihood to engage in violent behaviour going forward can be evidenced from the Applicant’s behaviour whilst in prison and whilst in immigration detention. Mr Silva indicated that records from detention were indicative of the Applicant being polite, compliant, and of not engaging in violent behaviour.
Mr Silva made reference to a case of the Administrative Appeals Tribunal BHYK and Minister for Immigration and Citizenship [2010] AATA 662, in which Deputy President Handley noted that when considering periods a person is in prison and in detention that “we must be conscious to the fact that the tensions experienced in custody and detention are often more extreme than those experienced in the community”. Mr Silva stated that if a person comes out of detention without any violence it is testimony to the Applicant’s control given the testing environment of prison and detention.
Reference was made to the supplementary SFIC dated 25 February 2025. Mr Silva stated that the Applicant was reliant on that document with respect to evidence of the Applicant’s behaviour in prison and in detention. The evidence indicated that the Applicant had no problem with inmates, the Applicant was interested in learning new skills, the Applicant is described in prison and detention records as being respectful courteous and polite. Mr Silva posited that “the consistency of his behaviour shows truly what he is made of”. Mr Silva noted that the Applicant completed a period of two years and two months of imprisonment with no violent behaviour during his incarceration.
With respect to the Applicant’s detention in the Villawood Immigration Detention Centre Mr Silva noted that there was no evidence of verbal or physical aggressive behaviour. The evidence indicated that whilst the Applicant was in prison and in immigration detention that he used it as a period of self-reflection with respect to his behaviour. The Applicant attended and completed numerous courses and programs whilst in prison and in detention.
Mr Silva addressed the Applicant's contribution to the violent offending that occurred on 5 March 2021, the offence of grievous bodily harm. Mr Silva noted that it was a 45 second incident. That the victim exited his car and initially grabbed a broomstick and then a crowbar. That the Applicant was swinging his hands towards the victim and asserted that the Applicant did not make a direct hit with the victim. Mr Silva noted that the other offender, the Applicant’s brother pulled the victim down and that when the victim was on the ground the Applicant appeared to be swinging his hands and feet. The strike to the victim’s head with a crowbar was perpetrated by the other offender. After the attack the victim got up. Mr Silva asserted that it was not the Applicant’s role in this offending that caused the injury to the victim. Mr Silva noted that evidence had been provided by Dr French, a trainee neurosurgeon, which indicated that the injuries to the victim were caused by the crowbar.
Mr Silva made reference to the Applicant’s actions to reduce risk in the future. Mr Silva stated that the Applicant had been engaged in soul-searching to mitigate future violence. The Applicant concluded that he was at fault with respect to the offending and apologised for the offending and wished to get on with his life.
Mr Silva made reference to evidence from the Department of Communities and Justice which indicates that the Applicant was polite in his interactions with staff and fellow detainees and prisoners whilst in detention.
Mr Silva made reference to evidence from persons close to the Applicant with respect to his propensity to engage in violence, who noted that apart from the March 2021 incident, there were no other issues of violence. Mr Silva referred to evidence of the Applicant’s former partner that the violence in the road rage incident would in her view, unlikely to be repeated.
Reference was made to the large number of persons who had visited the Applicant in prison (23 in total) indicative of strong community and familial support.
Mr Silva addressed the drug issue. Reference was made to the sentencing comments of Judge Buscombe in the District Court noting that the Applicant had good prospects for rehabilitation if the Applicant stays away from drugs, but that he was not able to find that the Applicant would not re-offend.
Mr Silva stated that the Applicant had abstained from the use of drugs whilst in prison and whilst in immigration detention. It was noted that the Applicant had complied with drug testing requirements. Reference was made to the Applicant facilitating a session of Alcoholics Anonymous and Narcotics Anonymous on 14 August 2024 and evidence that when the Applicant attended the sessions in detention that he conscientiously engaged in the sessions. Mr Silva noted that the Applicant had no prior criminal record for drug offending prior to the serious drug offences conviction of 14 November 2022.
Ms Schulz addressed the Tribunal. With respect to Direction 110 Ms Schultz noted that safety of the Australian community is the highest priority of the Australian government and that any risk is unacceptable.
Ms Schultz noted that the Applicant’s representative had attempted to minimise his offending behaviour with respect to the assault occasioning grievous bodily harm. Ms Schultz noted that the evidence before the Tribunal indicated that the Applicant punched the victim and kicked the victim in the head whilst the victim was lying on the road. Ms Schultz noted that the victim spent seven days in hospital. Ms Schultz made reference to the G documents at page 45 where the sentencing judge notes that “the offender Thomas Tonga approached the victim by running across the front of the victim’s car and around to the driver’s side. He appears to be trying to surprise the victim with his attack. He, together with the co-offender, wrestle and throw the victim to the ground. While the victim is on the ground, it is this offender who punches and kicks the victim to the head”. Ms Schulz stated that it was the intention of the Minister to show a video of the event in question and she noted that the video had been referenced in the index of material contained in the tender bundle.
Ms Schultz noted that the Tribunal with respect to Direction 110 needed to address 5 considerations. Ms Schultz argued that with respect to the protection of the Australian community and the expectations of the Australian community that these factors weighed strongly against revocation of the Applicant’s visa cancellation and indeed that they outweighed the remaining considerations.
Mr Silva with respect to an examination of the Applicant advised the Tribunal that the Applicant was reliant on his statutory declarations with respect to the revocation of his visa. Reference was directly made to the Applicant’s most recent statutory declaration dated 11 February 2025 and the Applicant confirmed that the contents of this document was true and correct.
Ms Schulz made reference to the Applicant’s criminal history ‘check results report’ dated 8 March 2023 located at G7 pages 38-40. This report indicated a conviction history spanning 30 June 2015 to 14 November 2022, consisting of 11 offences of which the Applicant was convicted of 9. Ms Schulz noted that the Tribunal could only have regard to the offending for which the Applicant was convicted. Ms Schulz noted that 9 offences over 7 years was indicative of a lot offending. Ms Schulz noted that the most serious offending was the offending for which the Applicant was convicted on 14 November 2022. That offending was knowingly deal with the proceeds of crime, supply prohibited drug, commercial quantity and cause grievous bodily harm to a person with intent.
Mr Silva advised that the Applicant did not wish to answer any questions with respect to this offending on the grounds of the risk of self-incrimination. Ms Schulz advised that the Minster was reliant on the findings of the District Court in Judge Buscome’s sentencing comments contained in the joint tender bundle located at G7 pages 41-66.
The Tribunal was played a video of the evident grounding the grievous bodily harm charge. The Applicant was identified as the person wearing a black puffer jacket and his brother Samuel was wearing a white t-shirt.
Ms Schulz advised the Applicant that she wished to ask him some further questions. For the Applicant’s benefit the Tribunal made reference to the definition of self-incrimination.
Ms Schultz made reference to a document located at page 238 of the tender bundle, namely a log of people who had visited the Applicant in detention. Ms Schultz noted that the Applicants younger brother Samuel, his co-offender in the 2022 grievous bodily harm matter, had visited the Applicant in detention according to the log. The Applicant noted that his brother Samuel had visited him in detention. He advised that his brother Samuel had been incarcerated, and that he has two young infant children. Ms Schultz asked the Applicant whether he intended to spend time with Samuel if he was released into the community. The Applicant stated that he had a close relationship with all of his siblings.

The evidence before the Tribunal indicates that the Applicant’s mother is an Australian citizen and has resided in Australia since 1997. The Applicant’s daughter is an Australian citizen and was born in Australia on 22 July 2012. The Applicant’s five siblings are all resident in Australia. The Applicant has a number of nieces and nephews in Australia with whom his is close, some of whom are minors.
The evidence before the Tribunal indicates that the Applicant has no close relatives in New Zealand or in Niue.
The evidence indicates that the Applicant’s father passed away in 2022, as a consequence of diabetes, dementia and kidney failure. The Applicant’s mother Lata in her statement dated 11 February 2025 notes that the Applicant had provided her with close support and companionship after the death of her husband.
The Respondents SFIC concedes that given the Applicant has lived continuously in Australia for an extended period and given the fact that all of his close family members are resident in Australia that “primary consideration 3 weighs in favour of revocation of the visa cancellation decision”.
The Tribunal finds, based on the evidence before it, that the Applicant has been resident in Australia from age 3 in 1997, to date, a period of 27 years. The Applicant’s mother (an Australian citizen) and 5 siblings are all resident in Australia. The Applicant’s 12-year-old daughter is an Australian citizen and resides in Australia as does her mother Ms Latia, with whom the Applicant maintains cordial relations. The Applicant’s partner Ms Crichton is a permanent resident of Australia and wishes to remain in Australia to pursue her career ambitions. It is clearly evident that the Applicant is close to his immediate family and particularly close to his daughter. The Tribunal finds that all these factors when cumulatively considered lead to a finding that primary consideration 3 weighs strongly in favour of revocation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs strongly in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges 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.
Paragraph 8.4(2) 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.
Paragraph 8.4(3) 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 Applicant has a 12 year old daughter who is an Australian citizen. The evidence indicates that the Applicant has been a good father to his daughter. The evidence indicates that despite the fact that he and his daughters mother Ms Sautia split up when their daughter was an infant, that the Applicant been intrinsically involved in all aspects of his daughter’s life and upbringing. The Applicant has nurtured his daughters love of rugby and has coached her and encouraged her and the evidence indicates that JT has been accepted into a selective sports high school in Western Sydney. The evidence indicates that the Applicant’s daughter has expressed to her mother, Ms Sautia, that if the Applicant is released into the community that she would like to reside full time with her father. Ms Sautia is happy with this proposal and expressed no reservations about the arrangement.
Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of 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 evidence before the Tribunal indicates that the Applicant has been actively involved in the co-parenting of his daughter until the time of his imprisonment and immigration detention. The Applicant will re-assume an active role in the life of his daughter is he is released into the community as arrangements indicate JT will live full time with her father. The evidence indicates that the Applicant and his daughter speak regularly since he has been detained.
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of 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 Applicants daughter is 12 and there is a lengthy period of time before she reaches adulthood. The evidence is indicative of a strong bond between the Applicant and his young daughter. The evidence indicates that the Applicant wishes to play an active role in her life going forward and this is evidenced by the arrangements for JT to reside full time with her father if he is released back into the community.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of 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.
There is no evidence before the Tribunal that the Applicant’s daughter has been negatively impacted by the Applicant’s conduct apart from her being distressed and missing her father greatly when he was imprisoned and then held in immigration detention.
The evidence is that if the Applicant is released into the community he will reside with his mother initially until he gets back on his feet. The Applicant has an offer of scaffolding work if he is released into the community which is confirmed by a prospective employer Mr Tiatia.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of 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.
The evidence before the Tribunal indicates that the Applicant’s daughter will miss her father greatly and the emotional, physical and prospective financial support he provides to her if he is removed from Australia. In her statement JT has stated that if her father is removed to New Zealand, it would destroy her life and it would be hard for her to live happily after that.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
The Applicant’s ex-partner Ms Sautia currently fulfills a parental role for the couple’s daughter. The evidence before the Tribunal indicates that the Applicant and Ms Sautia are committed to the co-parenting of JT going forward. In addition to this Ms Sautia is amenable to JT living with her father on a full-time basis with JT having access to Ms Sautia and her 3 step-siblings though weekend visits and the like.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant’s daughter as noted provided a statement to the Tribunal which is dated 10 February 2025. In her statement JT provides her clear views with respect to the potential removal of her father from Australia and the impact that this will have on her life. In that statement she says “I don’t think that I could imagine my dad being sent away to New Zealand, that will destroy my life, and it will be hard for me to live happily after that”. She also states that “when my father is released, I want to live with him because I feel happy with him, and he is the most important person in my life”.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any 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.
There is no evidence that the Applicant’s daughter has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant or evidence that she has been abused or neglected by the non-citizen in any way whether physically, sexually or mentally.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence that the Applicant has engaged in family violence.
Considering the totality of the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision strongly weigh strongly in favour of the revocation of cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs strongly in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws whilst in Australia.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the 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 8.5(3) of the Direction provides that the above expectations of the Australian community Apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 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.
Paragraph 8.5(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 a decision maker is required to have regard to.
In assessing the weight attributable to Primary Consideration 5, the Tribunal has had regard to the following.
From 2015 the Applicant committed what has been described by Judge Buscombe in the District Court of New South Wales as a range of relatively minor traffic offences. In March 2021 the Applicant engaged in the road rage incident along with his brother Samuel leading to a conviction for grievous bodily harm. In April 2021 the Applicant was involved in a supply prohibited drug offence at a commercial quantity and also dealing with the proceeds of crime.
The Applicant has abstained from drug use since he was incarcerated and the Applicant has given undertakings of his intention to remain drug free going forward.
The Tribunal finds that any form of assault is abhorrent and is unacceptable.
The Tribunal finds that the Applicants offending in Hassall Grove in March 2021 was serious and this is reflected in the fact that the Applicant was sentenced to a term of imprisonment with respect to this offence.
Conversely the Tribunal finds that the Applicants offending in April 2021 for drug related offending including supplying a prohibited substance at a commercial quantity and possessing the proceeds of crime is serious.
With respect to the 2021 offending the Applicant spent an extended period in prison before being paroled and the Applicant has given evidence that this was both a confronting experience and is one that he would not wish to repeat.
The Australian community expects non-citizens to obey Australian laws whilst they are resident in Australia. The Applicant engaged in criminal conduct in 2021 that breached this expectation. The Tribunal finds that the risk of further offending has been mitigated by a range of factors that have been extensively canvassed in the Tribunals consideration of risk above.
Conclusion: Primary Consideration 5
On balance the Tribunal finds that some weight should be given to Primary Consideration 5 against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
There is no evidence before the Tribunal of any non-refoulement obligations that may arise in this matter, or that it would be impracticable to remove the Applicant to New Zealand. Accordingly, the Tribunal does not consider this consideration to be relevant.
(b) Extent of impediments if removed
The Applicant is 30 years old and is a relatively young man who has worked predominantly in the factory and labouring sector. At one point of time the Applicant was hoping to pursue a career in rugby and was playing for a feeder team with respect to this objective.
The Applicant has resided continuously in Australia since he was 3 years old. The Applicant’s mother, brothers, and sister, his daughter and his partner and his nieces and nephews all reside in Australia.
The Applicant’s family is a close knit one.
The evidence is such that the Applicant would not suffer any language or cultural barriers in New Zealand if he were to return there. New Zealand offers medical and economic support systems comparable to those available in Australia and there is nothing to suggest that those systems would not be available to the Applicant if he returned to New Zealand.
The Tribunal is satisfied that the Applicant would likely experience some difficulties in establishing employment in New Zealand. The Tribunal finds that the removal from the Applicant’s own family, his immediate family and indeed his extended family in Australia would act as a significant impediment to his rehabilitation and ongoing self-improvement moving forward.
(c) Impact on Australian business interests
There is evidence before the Tribunal that the Applicant has been offered work as a scaffolder in Sydney if he is released into the community. There is no evidence before the Tribunal that indicates that the removal of the Applicant from Australia would have an adverse impact on Australian business interests. Accordingly, the Tribunal does not consider this consideration to be relevant.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs moderately against the revocation of the cancellation of the Applicant’s visa and as noted this finding has been made on the basis of a range of factors canvassed in the decision record that in the view of the Tribunal mitigate risk. The Tribunal notes that this consideration is not of itself determinative.
(b)Primary Consideration 2 is given no weight against the revocation of the cancellation of the Applicant’s visa as it is not relevant as the Applicant has not engaged in family violence.
(c)Primary Consideration 3 weighs strongly in favour of the revocation of the cancellation of the Applicant’s visa.
(d)Primary Consideration 4 is weighs strongly in favour of the revocation of the cancellation of the Applicant’s visa.
(e)Primary Consideration 5 is given some weight against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh in favour of the revocation of the cancellation of the Applicant’s visa.
For the stated reasons, the Tribunal gives moderate weight to Primary Consideration 1 and the protection of the Australian community with respect to the cancellation of the Applicant’s visa. No weight is apportioned to Primary Consideration 2. Strong weight is given to Primary Consideration 3 with respect to the revocation of the Applicant’s visa. Strong weight is given to Primary Consideration 4 with respect to the revocation of the Applicant’s visa. Primary Consideration 5 is given some weight against the cancellation of the Applicant’s visa. The Tribunal gives weight to other considerations with respect to the revocation of the Applicant’s visa. Cumulatively considering the Primary Considerations and the Other Considerations the Tribunal finds that the cancellation of the Applicant’s visa should be revoked.

The Tribunal has given careful consideration to all of the Primary Considerations and those of the Primary Considerations that are given primacy and the weight that should be apportioned to these considerations. The Tribunal has also given careful consideration to the Other Considerations. The Tribunal finds that having regard to the totality of the evidence and with respect to those considerations, that the cancellation of the Applicant’s Subclass 444 visa should be revoked.
Accordingly, the Tribunal is satisfied that the cancellation of the Applicant’s visa should be revoked.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.

Date(s) of hearing: 6 March 2025

Counsel for the Applicant:
Anthony Nicholas Silva

Solicitor for the Applicant:
Carlos Lindo, Macarthur Law Group

Solicitors for the Respondent: Ms Jessica Schulz Mills Oakley Solicitors

Date(s) of hearing:	6 March 2025
Counsel for the Applicant:	Anthony Nicholas Silva
Solicitor for the Applicant:	Carlos Lindo, Macarthur Law Group
Solicitors for the Respondent:	Ms Jessica Schulz Mills Oakley Solicitors