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

Tuli and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3817 (30 September 2020)
Division:GENERAL DIVISION
File Number(s):2020/4199
Re:Mr Konelio Faaletonu Tuli
APPLICANT

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

Tribunal:Senior Member B. Pola
Date:30 September 2020
Place:Brisbane

DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 7 July 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.............................[SGD]...........................................
Senior Member B.Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 79 – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK v Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Kohli v Minister for Immigration and Border Protection [2017] AATA 1326
Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155
LQZW v Minister for Home Affairs (Migration) [2019] AATA 93
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone v Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
30 September 2020
INTRODUCTION AND BACKGROUND

Mr Konelio Faaletonu Tuli (the ‘Applicant’) is a 53 year old male citizen of New Zealand. Movement records indicate the Applicant first arrived in Australia on 14 September 1989, at 22 years of age[1].
[1] Exhibit G1, G16, page 73. The Tribunal notes that the Applicant in their application to the Tribunal used “Konelio Faaletonu Tuli” as their name (refer to Exhibit G1, G1, page 1). The Tribunal notes from submissions outlined in Annexure 1 of these reasons that the Applicant has also used other names including, “Neil Tuli”, “Faaletonu Tuli”, “Konelio Tuli”, and “Faaletonu Konelio Tuli”.
The Department of Home Affairs’ (herein referred to as ‘Department’) movement history indicates the Applicant has lived in Australia since their arrival in 1989, and were last granted a Class TY Subclass 444 Special Category (Temporary) visa (herein referred to as ‘Visa’ in these reasons) on arrival into Australia on 28 December 1999 (the subject of this application before the Tribunal)[2].
[2] Exhibit G1, G16, page 73.
The Applicant has a criminal history spanning 36 years, beginning in New Zealand in 1983 and continuing shortly after their arrival into Australia with records indicating their first criminal conviction was recorded in December 1991. The Applicant’s criminal offending continued through to their final convicted offences in August 2019. The Applicant has appeared before lawful authority in Australia on some 27 occasions during their 31 years residing here, having been convicted of 71 offences, 34 of which carried custodial sentences[3].
[3] Exhibit G1, G5, pages 30 to 37.
Significantly, the offences of the Applicant include serious domestic violence, stalking and intimidation, possession of a knife in a public place, assault, assault occasioning actual bodily harm, assault of police officers, a range of significant property offences including destroy or damage property and goods in personal custody suspected of being stolen, drug offences, and serious traffic offences.
While serving a term of imprisonment, a delegate of the Minister (or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 9 September 2019 to mandatorily cancel the Applicant’s Visa (or the ‘Visa Cancellation Decision’) on the basis that he did not pass the character test pursuant to s501(6) of the Migration Act [4].
[4] Exhibit G1, G17, pages 74 to 79.
Following the Visa Cancellation Decision, the Applicant made submissions to the Respondent[5].
[5] Exhibit G1, G18 to G25, pages 80 to 119.
On 7 July 2020, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act[6]. The Applicant signed an acknowledgement of receipt of this decision on 8 July 2020[7].
[6] Exhibit G1, G3, page 16.
[7] Exhibit G1, G29, page 158.
The Applicant lodged an application with the Administrative Appeals Tribunal (or the ‘Tribunal’) on 13 July 2020 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[8].
[8] Exhibit G1, G1, pages 1 to 9. For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision, refer to s500(6B) of the Migration Act.
The Tribunal has jurisdiction to review this application pursuant to s500(1)(ba) of the Migration Act.
The application was heard in Brisbane on 15 September 2015, with the Applicant self‑represented and appearing via video link. The Respondent was represented by Mr Cormac Burke of Sparke Helmore Lawyers, who also appeared by video link. The Tribunal heard oral submissions by the Applicant and Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
Additionally, the Tribunal heard evidence from witnesses who were called to give evidence by the Applicant. These witnesses included the Applicant’s sister Ms Tafaoga Erika; Ms Neon Christine Liu (the Applicant’s niece); and Ms Malaefono Saifaleupolu (the Applicant’s niece).
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
As previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[9]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[9] Exhibit G1, G18 to G25, pages 80 to 119.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[10], where the following was stated:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[11].
[10] [2018] FCAFC 151.
[11] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked[12].
[12] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As previously referred to in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” pursuant to s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 23 August 2019, the Applicant was sentenced to two years and three months imprisonment at the Newcastle District Court, for two counts of assault occasioning actual bodily harm; one count of destroy or damage property (domestic violence); one count of contravene prohibition/restriction in AVO (domestic); and one count of stalk/intimidate intend fear physical harm (domestic).
The Tribunal is satisfied that the Applicant does not pass the character test as a result of having been sentenced to a term of imprisonment of 12 months or more[13].
[13] Exhibit G1, G9, pages 51 to 56.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499 of the Migration Act, to comply with any directions made under the Migration Act.
Given this, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (here on referred to as the “Direction”) must be applied[14]. The Direction provides guidance for decision-makers on how to exercise discretion in accordance with s501CA of the Migration Act. Relevantly, it states that:
“(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”[15].
[14] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[15] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides that the three Primary Considerations the Tribunal must consider are:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia; and
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
The Tribunal will now turn to addressing the three Primary Considerations.
Primary Consideration A – Protection of the Australian Community
In considering Primary Consideration A, paragraph 13.1(1) of the Direction, compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
This paragraph stipulates that remaining in Australia is a privilege on non-citizens and that there is an expectation that those non-citizens are, and have been law abiding, that they will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s Visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that:
(a)it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and
(b)that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following submissions:
(a)The s501 G-Documents[16] and the Respondent’s Tender Bundle[17], and the Respondent’s Further Tender Bundle[18] of material containing:
[16]    Exhibit G1.
[17]    Exhibit R1.
[18]    Exhibit R3.
(1)The Applicant’s criminal history which appears in the Criminal Intelligence Commission Report of 22 October 2019[19];
[19]    Exhibit G1, G5, pages 30 to 35.
(2)New Zealand Police Certificate, produced on 13 November 2006[20];
[20]    Exhibit G1, G6, pages 36 to 38.
(3)Court Order Notice from the District Court of New South Wales (‘NSW’) at Newcastle dated 29 August 2019[21];
[21]    Exhibit G1, G7, pages 39 to 40.
(4)NSW Department of Corrective Services Conviction, Sentences and Appeals report dated 2 September 2019[22];
[22]    Exhibit G1, G8, pages 41 to 50.
(5)Sentencing remarks of the District Court of NSW at Newcastle dated   23 August 2019[23];
[23]    Exhibit G1, G9, pages 51 to 56.
(6)Sentencing remarks of the Local Court of NSW at Newcastle dated  27 January 2006[24];
[24]    Exhibit G1, G10, pages 57 to 61.
(7)Sentencing remarks of the Local Court of NSW at Newcastle dated                 13 September 1995[25];
[25]    Exhibit G1, G11, pages 62 to 63.
(8)NSW Police Force Criminal History – Bail Report dated 3 August 2020[26];
[26]    Exhibit R1, TB1, pages 3 to 23.
(9)NSW Police Service Facts Sheet dated 22 December 2003[27];
[27]    Exhibit R1, TB2, pages 26 to 28.
(10)NSW Police Facts Sheet dated 29 May 2007[28];
[28]    Ibid, pages 29 to 33.
(11)Bond conditions dated 1 April 2008[29];
[29]    Ibid, page 34.
(12)NSW Police Service, Road Transport Authority Enquiry, dated 26 November 2009[30];
[30]    Exhibit R1, TB3, pages 37 and 38.
(13)NSW Police Facts Sheet dated 9 April 2018[31];
[31]    Ibid, pages 39 to 41.
(14)Bond conditions dated 16 February 2010[32];
[32]    Ibid, pages 42 to 44.
(15)NSW Police Facts Sheet dated 16 December 2009[33];
[33]    Ibid, pages 45 and 46.
(16)NSW Police Facts Sheet dated 19 July 2006[34];
[34]    Ibid, pages 47 to 50.
(17)Statutory Parole Order dated 23 August 2019[35];
[35]    Exhibit R1, TB4, pages 53 to 57.
(18)NSW District Court Agreed Facts dated 16 August 2019[36];
[36]    Ibid, pages 58 and 59.
(19)The Psych Practice Clinical and Forensic Psychology, letter from Dr D.G. Gilligan dated 19 August 2019[37];
[37]    Ibid, pages 60 to 69.
(20)Konelio Tuli DVEC Transcript dated 31 March 2018[38];
[38]    Ibid, pages 70 to 74.
(21)NSW Police Force, Statement of Police dated 14 June 2018[39];
[39]    Ibid, pages 75 and 76.
(22)NSW Police Force, Statement of Police dated 25 June 2018[40];
[40]    Ibid, pages 77 and 78.
(23)NSW Police Force, Statement of Police dated 28 June 2018[41];
[41]    Ibid, pages 79 and 80.
(24)Local Court of NSW, Final Order Apprehended Domestic Violence Order (‘AVO’) dated 5 April 2018[42];
[42]    Ibid, pages 81 to 83.
(25)NSW Police Force, Statement of a Witness dated 3 April 2018[43];
[43]    Ibid, pages 84 and 85.
(26)NSW Police Force, Statement of a Witness dated 27 July 2018[44];
[44]    Ibid, page 86.
(27)NSW Police Force, Statement of a Witness dated 3 April 2018[45];
[45]    Ibid, pages 87 to 88.
(28)NSW Police Force, Statement of Police dated 30 April 2018[46];
[46]    Ibid, page 89.
(29)NSW Police Force, Statement of Police dated 6 April 2018[47];
[47]    Ibid, pages 90 to 91.
(30)Apprehended Violence Order dated 13 December 2005[48];
[48]    Ibid, pages 92 to 93.
(31)Parole Order made by Court supervised parole dated 27 January 2006[49];
[49]    Ibid, pages 94 to 96.
(32)NSW Police Facts Sheet dated 20 January 2006[50];
[50]    Ibid, pages 97 to 101.
(33)NSW Police, Statement of Police dated 23 January 2006[51];
[51]    Ibid, pages 102 to 104.
(34)NSW Police, Statement of Police dated 25 January 2006[52];
[52]    Ibid, pages 107 to 108.
(35)NSW Police, Statement of Police dated 26 January 2006[53];
[53]    Ibid, page 109.
(36)NSW Department of Justice, Sentencing Assessment Report dated                    8 November 2018[54];
[54]    Exhibit R1, TB5, pages 112 to 114.
(37)Community Offender Services Probation and Parole Service – Pre‑sentence Report dated 9 February 2010[55];
[55]    Ibid, pages 115 to 116.
(38)Community Offender Services Probation and Parole Service – Pre‑sentence Report dated 28 November 2007[56];
[56]    Ibid, page 117.
(39)Community Offender Services Probation and Parole Service – Pre‑sentence Report dated 25 October 2007[57];
[57]    Ibid, page 118.
(40)Probation and Parole Service – Court Duty Officer Report dated  26 July 2006[58];
[58]    Ibid, page 119.
(41)Probation and Parole Service – Community Service Order Assessment dated 8 November 2003[59];
[59]    Ibid, page 120.
(42)Probation and Parole Service – Pre-sentence Report dated  30 April 2002[60];
[60]    Ibid, page 121.
(43)Probation and Parole Service – Pre-sentence Report dated  29 April 2002[61];
(44)Probation and Parole Service – Pre-sentence Report dated  24 September 1999[62];
(45)NSW Probation Service – Pre-sentence Report dated  12 September 1995[63];
(46)Department of Courts Administration NSW Probation Service – Pre‑sentence Report dated 21 September 1993[64];
(47)Department of Courts Administration NSW Probation Service – Pre‑sentence Report dated 20 February 1992[65];
(48)NSW Department of Corrective Services – Incident details dated  11 August 2020[66];
(49)International Health and Medical Services (‘IHMS’) records[67];
(50)Notes on interview with offender from Department of Immigration, Local Government and Ethnic Affairs dated 11 April 1996[68];
(51)Sentencing Report of District Court of NSW dated 17 May 1996[69]; and
(52)Letters from Ms Robertson of St Heliers Correctional Centre to Department[70].
[61]    Ibid, page 122.
[62]    Ibid, pages 123 and 124.
[63]    Ibid, pages 125 to 127.
[64]    Ibid, pages 128 and 129.
[65]    Ibid, pages 130 and 131.
[66]    Ibid, pages 132 and 133.
[67]    Exhibit R1, TB7, pages 136 to 140.
[68]    Exhibit R3, TB8, pages 141 to 151.
[69]    Ibid, pages 152 to 156.
[70]    Ibid, pages 157 to 160.
Overview of the Applicant’s criminal offending history

Before examining the nature and seriousness of the Applicant’s conduct to date, the Tribunal will provide a factual overview of the Applicant’s offending history. Evidence before the Tribunal confirms that the Applicant had a criminal history spanning more than 36 years, beginning in New Zealand prior to their arrival in Australia in 1989.
In New Zealand, the Applicant appeared before lawful authority on seven occasions for 15 offences which resulted in the imposition of various fines, non-residential periodic detention and supervision orders. The Applicant’s offences included serious traffic offences (driving with excess blood alcohol and speeding more than 50 kilometres per hour in a restricted area), drug offences, assault, assault of police and resisting police, and wilful damage to property[71].
[71] Exhibit G1, G6, pages 36 to 38.
The Applicant’s last offence in New Zealand is recorded as having occurred on  25 June 1989 for assault on police, with the Applicant receiving their court result on 7 September 1989, where they were convicted and sentenced to a fine[72]. A week after this conviction, on 14 September 1989, the Applicant migrated to Australia at 22 years of age[73].
[72]    Ibid, page 36.
[73]    Exhibit G1, G16, page 73.
Approximately two years after the Applicant’s arrival into Australia, he appeared before the Downing Centre Local Court on 9 December 1991 for supplying a prohibited drug, where he was convicted and fined.
Following the Applicant’s first appearance before lawful authority in Australia, he was convicted of assault occasioning actual bodily harm on 21 February 1992, for which the Applicant was sentenced to 150 hours of community service[74]. A Pre-sentence Report from the Department of Courts Administration stated[75]:
“Mr Tuli stated that his relationship with his defacto of three years has now ended. He has been counselled albeit briefly, by this Service to seek access to the child of the union, now aged twelve months in a lawful manner…Mr Tuli claimed that in relation to one assault, the victim negligently knocked over his drink and refused to apologize or buy him another, precipitating the assault. Regarding the other matters, he stated that he and his defacto were having and argument but he denies hitting or slapping her but instead he took his anger out on the walls of the house. Mr Tuli admits that he goes on ‘binges’ from time to time and that he finds it hard to stop drinking before his inhibitions to acts of violence have been lowered. While Mr Tuli’s alcohol consumption habits appear to be the main problem area where he should exercise self control, it is felt at this stage, that he retains the ability to do so, should he so choose, without the intervention of this Service…”
[74] Exhibit G1, G5, page 35.
[75] Exhibit R1, TB5, pages 130 and 131.
Following this, the Applicant was convicted the following month on 17 March 1992 in the Gosford Local Court, for three counts of malicious damage, and fined for each count, and ordered to pay compensation.
Almost a year later, on 2 February 1993, the Applicant appeared before the Newcastle Local Court for one count of malicious damage and was again fined, and ordered to pay compensation[76]. On 16 July 1993, the Applicant appeared before the Hornsby Local Court for a mid-range drink driving offence, and for driving without a licence, where he was fined and disqualified from driving[77].
[76] Exhibit G1, G5, page 35.
[77] Ibid.
On 13 January 1994, the Applicant was convicted of assault (domestic) and for two counts of malicious damage and sentenced to two terms of imprisonment, the first being four months and the second being for three months, to be served concurrently. Additionally, the Applicant was ordered to pay compensation. NSW Department of Corrective Services, Conviction, Sentences and Appeals records indicate that the Applicant entered prison on 14 January 1994 and was released on 15 May 1994[78].
[78] Exhibit G1, G8, pages 45 and 48.
On 4 March 1994, the Applicant was convicted of breaching their community service order. The Hornsby Local Court revoked the community service order and the Applicant was sentenced until 17 March 1994[79].
[79] Exhibit G1, G5, page 35.
On 11 April 1995, the Applicant appeared before the Newcastle Local Court and was convicted of assault, and sentenced to a good behaviour bond for two years, in addition to being convicted of offensive language and fined[80].
[80] Ibid.
On 13 September 1995, the Applicant was convicted for an array of offences related to an incident involving extremely serious violence against three victims (who the Tribunal will refer to as Victim J, Victim C and Victim D), in addition to assaulting police officers. A NSW Probation Service Pre-sentence Report dated 12 September 1995, states that[81]:
“In relation to the current offence, Mr Tuli said his cousin had been released from prison and they went together to a hotel. After about five hours of drinking, the offender said they were talking in Samoan and a woman started verbally abusing them for doing so. Mr Tuli said when he told the woman to shut up, her boyfriend, the complainant, verbally intervened. The offender then “slapped him” and the complainant fell to the ground. Mr Tuli remembers nothing else of the events. This account pales beside the seriousness of the facts presented by the Police Officer.”
[Tribunal’s underling]
[81] Exhibit R1, TB5, pages 126 and 127.
The Tribunal refers to the sentencing remarks of Magistrate C A Elliott before the Local Court of Newcastle who described the injuries suffered by one of the three victims of the Applicant’s offending[82]:
“[Redacted - in relation to Victim J] I take into account the circumstance of that offence when the defendant hit a victim unprovoked with a bar stool occasioning ten to twelve centimetre jagged lacerations requiring sutures, occasioning fractured eye socket, fractured cheek bone requiring reconstructive surgery. It was a vicious assault, as I said it was unprovoked. I am aware of the circumstances of each of the other offences committed whilst on bail but which he has pleaded guilty to at the first opportunity. It is a particularly cowardly assault. It is a particularly un-Australian assault and clear signals have to be sent to the community that conduct of that type is deplorable…”.
[Tribunal’s insertion and underling]
[82] Exhibit G1, G11, pages 62 and 63.
The Applicant was sentenced to a term of imprisonment of 24 months for the principle offence of assault occasioning actual bodily harm which occurred against one of the victims. The NSW Department of Corrective Services, Conviction, Sentences and Appeals records indicate that the Applicant entered prison on 8 September 1995, and was released on 7 March 1997[83].
[83] Exhibit G1, G8, page 48.
Following the Applicant’s release from prison, they resumed their offending, having been convicted of contravening an apprehended violence order, and destroy or damage property on 28 September 1999 before the Newcastle Local Court, where the Applicant was sentenced to community service and placed on probation[84]. A Probation and Parole Service Pre-sentence Report dated 24 September 1999, stated the following in relation to the offending of the Applicant[85]:
“Whilst the offender has returned to live with his mother and older brother from earlier this year when his partner took out an Apprehended Domestic Violence Order against him, he has lived in two defacto relationships over the years. He has an eight year old son who remains with his mother and with whom the offender has little contact. His two other children who are three and one and a half years old also remain with their mother, who is the victim of these offences. That defacto relationship has endured some four turbulent years including eighteen months of the offender’s incarceration and is generally by even the offender and his estranged partner, as being mutually destructive. Both parties have indicated a keen interest in restoring that relationship… During his time in Australia, Tuli has only held casual or short term unskilled or semi skilled positions. Following his release from prison in March 1997, he has only had minimal employment and remained in receipt of Social Security income currently amounting to $343.00 per fortnight… Records indicate that Tuli has had a definite problem with his alcohol abuse for many years… Tuli’s criminal record of violence usually involving alcohol does not do him any favours...”
[Tribunal’s underlining, offender refers to the Applicant]
[84] Exhibit G1, G5, page 35.
[85] Exhibit R1, TB5, pages 123 and 124.
Almost a year following this offence, the Applicant was then convicted of drink driving and driving unlicensed on 10 July 2000. The Applicant was fined and disqualified from driving[86].
[86] Exhibit G1, G5, pages 34 and 35.
Just over 12 months following this, on 3 October 2001, the Applicant was convicted of custody of a knife in a public place and a never licensed person never having a licence. He was fined and disqualified from driving for three years[87].
[87] Ibid, page 34.
Then on 30 April 2002, the Applicant was convicted of driving whilst disqualified, and fined and ordered to undertake community service[88]. A Probation and Parole Service Pre‑sentence Report dated 30 April 2002, stated the following[89]:
“Mr Tuli appears to give little regard for his current driving status and when interviewed, he reported that he has used his motor vehicle on a regular basis… During the preparation of this report, Mr Tuli did not appear to grasp the magnitude of his criminal behaviour and/or the position that he has placed himself in. Nevertheless, the offender is now aware his unlawful behaviour may well jeopardise his liberty.”
[Tribunal’s underlining]
[88] Ibid.
[89] Exhibit R1, TB5, pages 121 and 122.
Six months later on 24 October 2002, the Applicant appeared before the Newcastle Local Court for five offences including two counts of possessing a prohibited drug, unlawfully possessing a prescribed restricted substance, custody of a knife in a public place and goods in personal custody suspected of being stolen[90]. The Applicant was fined for each offence.
[90] Exhibit G1, G5, page 34.
The following year the Applicant appeared before the Casino Local Court on 19 November 2003 and was convicted of two counts of driving whilst disqualified from holding a licence, and sentenced to a term of imprisonment of six months for each count served concurrently, and disqualified from driving for two years[91].
[91] Ibid, page 34.
A couple of months following this on 19 January 2004, the Applicant was then convicted of goods suspected stolen given to other not entitled, and of goods in personal custody suspected of being stolen (both counts did not involve motor vehicles). The Applicant was sentenced to a term of imprisonment of four months for each count served concurrently[92].
[92] Ibid, page 34.
On 13 December 2005, the Applicant was convicted at the Newcastle Local Court for one count of destroy or damage property and was given a good behaviour bond[93]. As a result of this offending the Applicant was also subject to an AVO put in place against them to protect the sister of the Applicant’s partner (the Tribunal will refer to the partner as Ms M). The AVO was in place for a period of 12 months[94].
[93] Ibid.
[94] Exhibit R1, TB4, pages 92 and 93.
Then on 27 January 2006, the Applicant appeared before the Newcastle Local Court and was convicted of two counts of contravening an AVO, and sentenced to a term of imprisonment of 12 months served concurrently for both counts[95]. The victim of the Applicant’s offending was his partner Ms M. A NSW Police Facts Sheets dated 26 January 2006 outlines the events leading to the Applicant’s appearance before the Newcastle Local Court.
[95] Exhibit G1, G5, page 34.
According to the Facts Sheet, the Applicant attended the residence of his partner (Ms M) and her sister, on the evening of Monday 16 January 2006, noting an AVO had been put in place against the Applicant preventing him from attending the residence of Ms M’s sister. The NSW Police Facts Sheet outlines the events as follows[96]:
[96] Exhibit R1, TB4, pages 98 to 101.
“On Monday 16 January 2006 about 10:30pm…
The victim and accused had an argument whilst in the dining room/kitchen area which resulted in the accused chasing the victim around the dining table. The victim ran to the corner of the room, behind the dining table and the accused has picked up a steel frame dining chair with his right hand and swung the chair, holding it by the top metal rung of the back of the chair, and hit the victim in the head with one of the legs of the chair. The impact of the blow has caused the victim to black out and loose [sic] consciousness.
The victim came too [sic] an unknown time later and was lying on the kitchen floor covered in blood. Ambulance attended and conveyed the victim to Hospital where she received approximately 8 sutures to a 5cm wound on the top left of her head.
On Thursday 19 January 2006 the victim was walking in Islington when she saw the accused, he verbally abused her for being in the street and grabbed her by the hair, pulling her head down. This caused the victim pain due to her hair being pulled and due to the accused grabbing her where she had received the sutures from the incident on Monday 16 January 2006.
The victim, [redacted – Ms M], is seeking an AVO to protect her from the accused. The victim fears for her safety from the accused. The victim stated that the accused is using a large amount of drugs and that his behaviour is being more violent and unpredictable due to his drug use. The victim stated that the accused was using any form of drug he could obtain but that he was predominately using “Ice”…
About 11:00pm on Thursday the 18^th of January, 2006, the accused had attended the premises at [address redacted]. It’s alleged that the accused commended knocking on the front door of those premises. At the time the victim was unaware as to who was knocking on the door.
The victim yelled out, “Who is it. Who is it”. The accused did not answer the victim. The victim has opened the front screen door and the accused has just “popped” around the corner. It’s alleged that the accused stated, ‘I have to get my keys.” The victim told the accused that he wasn’t meant to be there.
The accused has then entered those premises at [address redacted]. The victim has requested that the accused leave as she was worried that he was going to do something. The accused has then walked up the stairs to the kitchen area and sat at the kitchen able. At the time, [redacted – Ms M] was at home and has taken the telephone to the victim. The victim has then contacted police.
About 11:45pm that evening police attended [address redacted]. Police spoke with the victim and her sister. At the time there were also two young children at the premises. Police then went to the kitchen area where the accused was located seated and asleep at the kitchen table. Police woke the accused and spoke to him in regard to the Apprehended Violence Order. At the time the accused appeared to be drug effected [sic].
The accused was escorted from those premises.”
[Tribunal insertions for clarity, the accused refers to the Applicant]
The Tribunal notes the prosecution at the hearing on 27 January 2006 sought an adjournment on the basis that the additional charges relating to common assault, assault occasioning actual bodily harm, maliciously inflicting grievous bodily harm and malicious wounding were unable to be proved beyond reasonable doubt as the key witness (Ms M) did not appear to give evidence regarding the events[97]. His Honour C Elliot stated at the hearing, “I am aware too of the relationship between them and the impact upon that relationship that might prevail should she be compelled. She has indicated her reluctance to attend on any occasion”[98].
[97] Exhibit G1, G10, pages 57 to 61.
[98] Ibid, page 59.
A few months following on from the Applicant’s domestic violence offending in January 2006, the Applicant appeared before the Newcastle District Court on 2 March 2006 and was convicted of a further two counts of contravening an apprehended domestic violence order. The Applicant was sentenced in lieu on the rising of the court[99].
[99] Exhibit G1, G5, page 34.
Then on 26 July 2006, the Applicant appeared before the Newcastle Local Court for five offences relating to further domestic violence. A NSW Police Facts Sheet dated 19 July 2006 outlined the Applicant’s offending on this occasion[100]:
“About 7pm on Tuesday the 18^th of July, 2006, the accused attended uninvited, [address redacted]. The accused entered the premises uninvited and said words similar to the victim, “where the fuck is [redacted – Ms M]”. The accused was drug affected as he attempted to pull the skin from his arm. The accused was informed that she was not within the premises. The accused then made his way upstairs to the dining room and sat at the table waiting for [redacted – Ms M] to arrive…A short time later, [redacted – Ms M] arrived at the premises and was immediately informed by her sister (victim) that the accused was waiting in the upstairs dining room. [redacted – Ms M] then contacted police for both [redacted – Ms M] and the victim feared for their safety. Police arrived a short time later, to be informed the accused was still in the upstairs dining room within the premises. …Police had knowledge the accused was in breach of the enforceable AVO between the accused and the victim. Police left the victim and her sister, and walked to the upstairs dining room through to a rear toilet. Police called to the accused to come out of the toilet, which he did. The accused was immediately WIPED, by police identifying themselves, what station they were form, and and [sic] that failure to comply with any direction that he may be committing an offence. …The accused appeared drug affected as he continually scratched his forearm and slurred his speech. The accused was immediately informed that he was in breach of an enforceable AVO, and placed under arrest where he was cautioned. The accused became instantly aggressive towards police where he attempted to push past police and speak with the victims [sic] sister [redacted – Ms M]. …Police then escorted the accused, without any physical contact, to the dining room in [sic] attempt to locate personal affects ie; shoes etc. The accused aggressive [sic] behaviour continued to the point where he grabbed a metal framed chair with a wooden seat attached, holding it above his head where he screamed with a loud voice, “I am not going to fucken gaol, you’ll have to shoot me you cunts”. This behaviour prevented and hindered police from affecting the arrest and escorting him from within the premises to a police vehicle for a short period of time. …Police attempted to reason with the accused to have him put the chair down with a negative result. Both Constable [name redacted] and Leading Senior Constable [ name redacted] feared they were going to be assaulted with the metal framed chaired [sic], subsequently, both deployed two, one second burst of O.C. spread to the accused. The accused continued to hold the chair in front of him causing police to physically remove the chair by force and place the accused on the ground where he struggled violently with police. Police placed handcuffs on the accused to the rear.”
[Tribunal insertions for clarity, the accused refers to the Applicant]
[100] Exhibit R1, TB3, pages 49 and 50.
A Probation and Parole Service Court Duty Officer Report of 26 July 2006, stated the following in relation to the Applicant’s offending[101]:
“The offender’s response to community based sentencing options in the past has been unsatisfactory, with Orders being revoked and/or forfeited when the offender was subsequently imprisoned.
Given the above, it is with reservation that an Order of this type is recommended. However should the Court request that he be supervised, his participation in a residential rehabilitation programme would seem paramount in addressing his unresolved additional issues…
Over the past twenty three years, Mr Tuli has battled with substance addiction. Initially his drug of choice had been alcohol; however he is presently entrenched in the abuse of heroin, methylamphetamine, methadone and cannabis. He attributed his harsh upbringing and his father’s violent behaviour as the foundation for his addiction.
Given his well established drug addiction, long term drug treatment would seem to be the obvious treatment option.”
[101] Exhibit R1, TB5, page 119.

The Applicant was sentenced to a term of imprisonment of three months served concurrently for using an offensive weapon to prevent lawful detention, assaulting an officer in the execution of their duty and contravening an apprehended domestic violence order. Drugs in the Applicant’s possession were ordered to be destroyed in relation to their offence of possessing a prohibited drug. In regard to their offence of resisting or hindering a police officer in the execution of their duty, the Applicant was sentenced in lieu on the rising of the court[102].
[102] Exhibit G1, G5, page 33.
Almost two years following his last offending episode, the Applicant then appeared before the Lismore Local Court on 1 April 2008 for nine offences relating to possessing housebreaking implements, shoplifting, failure to appear in accordance with a bail undertaking, custody of a knife in a public place, two counts of goods in personal custody suspected of being stolen (not a motor vehicle), and three counts of knowingly contravening a prohibition/restriction order[103]. The Applicant was convicted of the offences but a sentence was not imposed and instead the Applicant was released upon entering into a bond which required the Applicant to be of good behaviour, and (amongst other terms) in the event the Applicant failed to comply with that bond, it would be revoked and they would face re‑sentencing for the offences[104].
[103] Ibid, page 33.
[104] Exhibit R1, TB2, page 33.
On 16 February 2010, the Applicant appeared before the Newcastle Local Court and was convicted of driving whilst disqualified from holding a licence[105]. A NSW Police Facts Sheet indicates that the Applicant was caught driving on the evening of 24 November 2009, with police officers running checks on the Applicant which showed that he was a disqualified driver for the period of 3 October 2001 until 2 October 2018[106]. A Community Offender Services Probation and Parole Service Pre-sentence Report dated 16 February 2010, stated that the Applicant was assessed as unlikely to require benefit from supervision from their service, and that they were unsuitable for a Community Service Order as they had not supplied a requested medical clearance[107]. The Applicant was sentenced to a term of imprisonment of eight months, suspended on the Applicant entering into a bond.
[105] Exhibit G1, G5, page 33.
[106] Exhibit R1, TB3, pages 45 and 46.
[107] Exhibit R1, TB5, page 115 and 116.
Following the Applicant’s driving offence in late 2009, for which he was convicted in 2010, he was then convicted on 27 September 2011 of possessing a prohibited drug and fined.
There was a break in the Applicant’s offending of some five and a half years, until 9 March 2017, when the Applicant was again convicted of possessing a prohibited drug, for which his sentence did not impose a penalty.
Following this, on 8 November 2018, the Applicant appeared before the Newcastle Local Court for offences relating to possession of equipment for administering prohibited drugs, possess a prohibited drug, and possess or use a prohibited weapon without permit[108]. A Sentencing Assessment Report from Corrective Services NSW dated 6 November 2018 stated[109]:
[108] Exhibit G1, G5, page 33.
[109] Exhibit R1, TB5, pages 112 to 114.
“History of anti-social behaviour
·Mr Tuli has lengthy history of anti-social behaviour that has resulted in a criminal history encompassing various offences, including driving, drugs and assault.
·He reported that in addition to his illicit substance dependence, he gets “cranky” when under the include of alcohol. He admitted that his consumption of alcohol was a factor in some of his past offending behaviour…
Insight into impact of offending
·Mr Tuli agreed with the Police facts and accepted responsibility for his actions. He reported knowing what he did wrong and detailed having to deal with the consequences.
·He however displayed limited insight into how his offending behaviour has affected others.
Willingness and ability to undertake intervention
·Mr Tuli agreed that he needs to address his drug dependence and mental health through appropriate channels, rather than self- medicating with illicit substances.
…
Risk assessment
·Mr Tuli has been assessed at a Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R).
Supervision plan
·If the court makes a supervised order…This means that he will be required to report to a Community Corrections Officer every 2 weeks, and receive home visits from the officer ever 12 weeks.”
[Emphasis in original]
The Applicant was sentenced to a term of imprisonment of three months for his offence relating to possess or use a prohibited weapon without permit and was convicted without penalty for the drug related offences. The Applicant appealed this prison sentence to the Newcastle District Court on 7 February 2019, and it was reduced to one month[110].
[110] Exhibit G1, G5, page 33.
The Applicant’s final offending episode ended with the sentence handed down in the Newcastle District Court on 23 August 2019[111]. A statement of Agreed Facts dated 16 August 2019 from the Office of the Director of Public Prosecutions in Newcastle outlines the events which lead to the Applicant’s convictions[112]:
[111] Ibid, pages 30 to 33.
[112] Exhibit R1, TB4, pages 58 and 59.
“1. The complainant [redacted - Ms M], aged 45 years.
2. The Offender is Konelio TULI, aged 51 years.
…
4. The Offender and the complainant were at the Offender’s premises of [address redacted]. On the morning of 31 March 2018 [redacted – Ms M] found a piece of paper on which the Offender had written something to the effect that he didn’t have any respect for or love for [redacted – Ms M]. [Redacted – Ms M] confronted the Offender about the piece of paper.
5. The Offender was asleep and woke up when [redacted – Ms M] attempted to leave the premises. The Offender became very angry that she had woken him up. The Offender hit her and grabbed her by the hair. The Offender lead [redacted – Ms M] by the hair from the bedroom to the front door and pushed her out the front door causing her to fall down two steps, landing on the cement on her hands and knees. [Redacted – Ms M] sustained grazing to her hands and knees and a circular graze under her bottom lip.
6. [Redacted – Ms M] shouted out for her mobile telephone. The Offender threw her mobile phone out the door, the phone landed on the road and shattered.
7. Police attended a short time later and observed the complainant had blood on her face, hands and knees. Photographs taken by police depict the injuries sustained by [redacted – Ms M].
8. [Redacted – Ms M] participated in a DVEC interview on 31.3.2018.
9. The Offender was arrested and charged on 31.3.2018 in relation to the incident and subsequently released to conditional bail.
10. An interim ADVO was applied for and served on the Offender on 31.3.2018, naming the complainant as the PINOP [Person in Need of Protection] and the Offender as the defendant.
…
11. On1 April 2018, [redacted – Ms M] was spending time with her friend [redacted – Ms C] at her flat – [address redacted]. In the early hours of 2 April they both woke up to banging on the front door.
12. [Redacted – Ms M] recalled that [redacted – Ms C] went to the front door and opened the door and had a conversation with the Offender. The Offender entered the house.
13. The Offender leapt on top of [redacted – Ms M] who was sitting on the lounge and hit her twice to the head. The Offender was yelling “Slut, you fucken whore, you thing, your thieving, you ow me.”
14. The Offender grabbed [redacted – Ms M] by the hair and lead her upstairs to the first floor of [redacted – Ms C]’s flat. [Redacted – Ms C] ran after him yelling “Get out of my house”. The Offender pushed [redacted – Ms M] into the spare bedroom, [redacted – Ms M] fell onto the floor. The Offender shouted “Are ya coming home are you coming you slut, mole slag”. [Redacted – Ms M] said she wasn’t coming home. The offender left shortly after.
15. The complainant suffered a graze to her upper forehead and a bruise to her left hip.
…
16. During the incident the Offender threated [redacted – Ms M] “I’ll kill you” [sequence 3].
17. Police attended 30 mins later and spoke to [redacted – Ms M] and [redacted – Ms C]. They advised them to report the matter after 6.30am.
18. The Offender was arrested and declined to enter into an interview.
19. The Offender was charged for these offences on 6 April 2018.”
[Tribunal insertions for clarity]
The Tribunal has before it a copy of a witness statement from Ms C[113] and Ms M[114] both of which were dated 3 April 2018, and both of which correlate to the statement of Agreed Facts[115]. The Tribunal notes the following from Ms M’s witness statement[116]:
“I haven’t seen him since. I didn’t give him any permission to assault or ill treat me in anyway [sic]. Because of what he did to me I have pain to my left hip, I am having trouble remembering things and I want to keep sleepin and sleepin. I also have a graze to my upper forehead. He also said, “If you turn up to court I’ll kill you”.
[Tribunal’s underlining]
[113] Exhibit R1, TB4, pages 87 and 88.
[114] Ibid, pages 84 and 85.
[115] Ibid, pages 58 and 59.
[116] Ibid, pages 84 and 85.
On 27 July 2018, Ms M provided a further witness statement, stating[117]:
“On the 3^rd of April 2018, I gave Senior Constable [name redacted] a statement. whilst giving the statement, I was drug and alcohol effected. I was angry and exaggerated in my statement. Konelio Tuli did not break into my house, he was let in the house three times. I just don’t want him to get deported. I don’t want to give evidence against him, if anything I will give evidence for him.”
[117] Exhibit R1, TB4, page 86.
The Tribunal refers to the sentencing remarks of His Honour Judge Ellis before the Newcastle District Court on 23 August 2019[118]:
[118] Exhibit G1, G9, pages 51 to 56.
“…The facts in relation to the first count of assault are as follows. The victim in the matter was the offender’s wife. They had been together for over 20 years. There were two adult children to the relationship. In the morning of the 31^st of March 2018, the offender hit the victim and grabbed her by the hair, pulled her by the fair from the bedroom to the front door and then pushed her out the front door, causing her to fall down two steps, landing on the cement on her hands and knees. She sustained grazing to her hands and knees and a circular graze under her bottom lip. He then threw the mobile phone down and it smashed on the road and shattered and that is conduct subject of the matter on the Form 1. The Court indicates the criminality of the matter on the Form 1 will be taken into account and reflected in the penalty imposed on count 1.
As I have said, the offender also pleads guilty to the matters on the section 166 Certificate. Those matters took place on 1 April 2018 and involved the same victim. On that occasion the offender went to where the victim was staying with a friend and entered the house that she was in. The victim was on a lounge and the offender then jumped on top of her and hit her twice to the head, calling her names. He was told to get out of the house by the owner and during the course of the incident, he threatened the victim with the words “I’ll kill you”, which is the intimidation offence. He was subject to an AVO at the time and his approach and conduct on that second occasion is the breach of the AVO and cause of that particular offence.
The offender is now 52 years of age. He was 51 at the time. In relation to the matters on the section 166 Certificate, five years is the maximum penalty for the assault occasioning actual bodily harm and two years the maximum for each of the other two offences. However, because I am dealing with those matters summarily, the court is restricted to the Local Court jurisdictional limits. What I in fact propose to do is to impose and aggregate sentence for both the matters on the section 166 Certificate and the matter on the indictment count.
He has been in custody since, essentially 6 May 2018, although I note he served a sentence of one month for possession of a prohibited weapon. It is appropriate to start that sentence one month after 6 May, namely 6 June 2018. At the time of the second series of offences, he was on bail for the first assault. He has a relatively lengthy criminal history involving assaults, domestic related assaults and malicious damage. He has served short periods of imprisonment on previous occasions and in 1995 a sentence of two years with a non-parole period for three assaults on police and four other assaults.
I have considered s 3A of the Crimes (Sentencing Procedure) Act and the principles of sentence set out within that provision and I have considered s 5 and determined that no sentence other than a sentence of imprisonment would be appropriate. I have considered s 21A, noting that the second series of offences took place in the home of another person. I have also considered s 4A and 4B, the new provisions dealing with the community’s concern regarding domestic violence.
I will apply the principles set out by the High Court in Pearce by imposing discrete sentences, that is by nominating indicative sentences in this instance, and the principle of totality will be reflected in my fixing of the aggregate sentence, which will reflect my assessment of the total level of criminality…
…I will correct that. I said two before. The maximum peanalty [sic] is two years for the contravene ACO offence and give for the intimidate offence.
In relation to these matters then, on each count he is convicted.
In relation to the indictment matter and taking into account the matter on the Form 1, I nominate an indicative sentence of 15 months imprisonment.
In relation to the three matters on the section 166 certificate, for the assault occasioning actual bodily harm, I nominate a 15 month indicative sentence. In relation to the offence of intimidate, I nominate an indicative sentence of six months.
In relation to the contravene AVO offence, similarly, I nominate a six month indicative sentence.
In relation to each count, I impose an Aggregate sentence of imprisonment of 2 years and 3 months to date from 06 June 2018 and to expire on 05/09/2020 with a Non-parole period of 1 year and 3 months TDF 6 June 2918 and to expire on 05/09/2019.”
The Nature and Seriousness of the Applicant’s Conduct to Date
At the hearing, the Applicant was cross-examined by the Respondent about their criminal offending history. The Applicant’s response to these questions under cross-examination can largely be categorised as:
(i)initially either denying offences occurred when they were put to him; and/or
(ii)offering alternate versions of events to what appeared in sentencing remarks, police facts sheets, witness statements or other relevant submissions; and/or
(iii)not being able to recall the circumstances surrounding the offences when they were committed.
To the extent that the Applicant has brought into question the underlying facts of prior convictions, the Tribunal refers to HZCP v Minister for Immigration and Border Protection[119], where His Honour Bromberg J, stated the following principles should be applied, with reference to paragraph 78 of his judgement:
“78. I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF. On that basis the applicable principles are these:
(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.” [120]
[119] [2018] FCA 1803.
[120] Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.
The Tribunal notes that this decision was later upheld by the Full Federal Court, where His Honour McKerracher J stated at paragraph 77 of the judgement[121]:
““77. As a matter of policy, it would be highly undesirable if Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.”
[121] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202.
The Tribunal does not regard the Applicant as having discharged the substantial onus of challenging the facts of the convictions against him. The Tribunal gives significant weight to the court’s consideration of the facts of the offences and to the seriousness with which the court’s have regarded the offending of the Applicant.
The Tribunal views the Applicant’s violent offending as extremely serious. The Tribunal is of the view that this finding is consistent with the application of the following relevant sub‑paragraphs in paragraph 13.1.1(1) of the Direction:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
…
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
…”
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”.

The Tribunal refers to the Applicant’s criminal offending history which is littered with serious violent assault convictions against women in a domestic context, during his time residing in Australia. The Tribunal refers to 12 convictions of the Applicant regarding their domestic violence related offences:
(a) 13 January 1994, convicted one count of assault (domestic).
(b) 28 September 1999, convicted of one count of contravening an apprehended domestic violence order (in place to protect his partner at the time, Ms M).
(c) 27 January 2006, convicted of two counts of contravening an apprehended domestic violence order (in place to protect the sister of his partner (Ms M) at the time).
(d) 2 March 2006, convicted of two counts of contravening an apprehended domestic violence order.
(e) 26 July 2006, convicted of one count of contravene an apprehended domestic violence order.
(f) 23 August 2019, convicted of contravening an apprehended domestic violence order, one count of destroy or damage property (Domestic Violence), two counts of assault occasioning actual bodily harm (Domestic Violence), and one count of stalk/intimidate (domestic).
The Tribunal refers to the sentencing remarks of His Honour Judge Ellis in the District Court of NSW, in relation to the convictions of 23 August 2019, where Judge Ellis described the Applicant’s offending, “He has a relatively lengthy criminal history involving assaults, domestic related assaults and malicious damage”[122].
[122] Exhibit G1, G9, page 53.
The Tribunal refers to the Pre-sentence Report from the Department of Courts Administration, which stated in relation to the Applicant’s offending in February 1992, prior to his appearance before the Gosford Local Court[123]:
“Mr Tuli stated that his relationship with his defacto of three years has now ended. He has been counselled albeit briefly, by this Service to seek access to the child of the union, now aged twelve months in a lawful manner… Regarding the other matters, he stated that he and his defacto were having an argument but he denies hitting or slapping her but instead he took his anger out on the walls of the house. Mr Tuli admits that he goes on ‘binges’ from time to time and that he finds it hard to stop drinking before his inhibitions to acts of violence have been lowered.”
[Tribunal’s underling]
[123] Exhibit R1, TB5, pages 130 and 131.
The Tribunal observes the allegations against the Applicant in January 2006.It was initially alleged that he had caused his former partner to receive a wound to the back of her head, allegedly caused by the Applicant swinging a steel-framed chair, causing her to back out and lose consciousness. The Tribunal acknowledges that charges were withdrawn and the Applicant was not convicted. The Tribunal refers to the sentencing remarks of His Honour Magistrate C Elliot at the time on 27 January 2006 at the Local Court of Newcastle, that, “I am aware too of the relationship between them and the impact upon that relationship that might prevail should she be compelled. She has indicated her reluctance to attend on any occasion”[124].
[124] Exhibit G1, G10, page 59.
In the Tribunal’s mind the submitted evidence relating to the initial charges which were later withdrawn in January 2006, adds further weight to the Applicant’s broader pattern of violent behaviour towards his partner and other members of the community.
In addition to the example above, the Tribunal observes that the Applicant’s partner later withdrew her witness statement as to her version of events regarding the Applicant’s violent offending in April 2018, for which he was later convicted. Ms M stated in an additional witness statement, “… I just don’t want him to get deported. I don’t want to give evidence against him, if anything I will give evidence for him” [125].
[125] Exhibit R1, TB4, page 86.
The Tribunal observes that in relation to the offending in April 2018, a statement of Agreed Facts dated 16 August 2019 records the Applicant as threatening to kill his partner Ms M[126]. At the hearing, the Applicant denied these threats were made to his partner, despite there being a statement of Agreed Facts, and despite pleading guilty to the offences[127].
[126] Ibid, page 59.
[127] Transcript, 15 September 2020, page 36, lines 1 to 38.
The Tribunal also has particular regard to the Applicant’s extremely serious violent offending for which he was convicted of in the Newcastle Local Court on 13 September 1995 against male victims, Victims J, C and D, as well as police officers. The Tribunal again refers to Magistrate Elliot’s remarks describing the assault[128]:
“It was a vicious assault, as I said it was unprovoked. I am aware of the circumstances of each of the other offences committed whilst on bail but which he has pleaded guilty to at the first opportunity. It is a particularly cowardly assault. It is a particularly un-Australian assault and clear signals have to be sent to the community that conduct of that type is deplorable…”.
[128] Exhibit G1, G11, pages 62 and 63.
On review of the evidence before the Tribunal in relation to the Applicant’s violent offending convictions, the Tribunal observes that the violent attacks were largely unprovoked, and impulsive. The Applicant has demonstrated no regard to the wellbeing of his partner or other innocent victims; inflicting extreme psychological and physical harm, which in the Tribunal’s mind only adds to the extreme seriousness to which the Applicant’s conduct is viewed.
There is no doubt in the Tribunal’s mind that the Applicant’s criminal offending for which he has been convicted enlivens the application of sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction, and that the nature of the Applicant’s violent repeat offending towards women is to be viewed extremely seriously.
The Tribunal has had regard to the provisions of sub-paragraph (c) of paragraph 13.1.1(1) of the Direction and is of the view that the factual circumstances of the Applicant’s offending attracts the application of this sub-paragraph, as determinative of the nature or seriousness of the Applicant’s offending.
There are a number of examples in the material before the Tribunal where the Applicant has been convicted of committing crimes against police officers. Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction states that the “The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious”.
The Tribunal has particular regard to the offending of the Applicant involving assaults on three police officers, for which he was convicted on 13 September 1995.
It is evident that the penalty handed down by the court did not deter the Applicant from again assaulting police officers, as he was later convicted for assault on an officer in the execution of their duty on 26 July 2006[129].
[129] Exhibit G1, G5, page 33.
There is no doubt in the Tribunal’s mind that the Applicant has enlivened sub-paragraph (c) of paragraph 13.1.1(1) of the Direction. The Tribunal finds the nature of the Applicant’s violent offending towards vulnerable members of the community (namely police officers due to the position they hold, and when performing their duties) is viewed extremely seriously.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of the same paragraph of the Direction), to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen (or the Applicant). The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by the Applicant.
As the Tribunal has already outlined in these reasons the Applicant arrived in Australia on 14 September 1989, at 22 years of age[130]. Migration records show that the Applicant has remained in Australia since their arrival in 1989, with only one trip back to New Zealand for two weeks in December 1999. The Applicant, currently 53 years old has spent the balance of their life in Australia (31 years), therefore being part of the mainstream Australian community for the majority of their adult life.
[130] Exhibit G1, G16, page 73.
Records indicate that the Applicant has been in and out of criminal custody throughout their time in Australia. The Applicant’s offending history has culminated in the sentencing of custodial terms totalling more than 18 years, the Tribunal is mindful that parole release dates did come into operation reducing the total time the Applicant spent in criminal custody[131]. The Applicant’s prolific and violent offending has seen him appear before lawful authority on some 27 occasions over a 28 year period, from the ages of 24 to 52[132].
[131] Exhibit G1, G5, pages 30 to 35.
[132] Ibid.
The Tribunal is of the view, having regard to the relatively intense and lengthy nature of the Applicant’s offending from 1991 to 2019, that sub-paragraph (d) of paragraph 13.1.1(1) of the Direction has application. The Tribunal is of the view that there can be no other finding other than the Applicant’s offending is indeed of an extremely serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
The Tribunal has had regard to the frequency of the Applicant’s offending, noting the Applicant arrived in Australia at 22 years of age where he has spent the majority of his adult life. The Applicant has appeared before lawful authority in Australia on some 27 separate occasions for 71 offences, of which 34 received custodial sentences, and 36 received non‑custodial sentences[133].
[133] Ibid.
The impression to be taken from the Applicant’s offending history in Australia, shows that they have averaged around three offences per year when they were not serving time in criminal custody. The Tribunal notes that most of the offences the Applicant has been convicted of are considered extremely serious, including assault and malicious damage. The Applicant has been offending for most of their adult life, aside from a brief period between late 2011 and early 2017, where there are no recorded convictions.
The Tribunal’s view is that the Applicant’s offending is of a very frequent nature and often involves extreme violence. The Tribunal is of the view that the Applicant’s offending has sustained an extreme level of seriousness throughout its time, and it is clear that the Applicant’s offending is to be viewed extremely seriously.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
Throughout the Applicant’s offending history he has benefited from countless non-custodial sentences including community service, good behaviour bonds, apprehended domestic violence orders, bail undertakings, and the imposition of fines. Despite this, the Applicant has not taken these opportunities to moderate his conduct and address the factors predisposing him to violently offend, or to address his significant substance abuse issues, which largely remain unresolved on the evidence before the Tribunal, discussed later in these reasons.
The Applicant’s sustained and frequent offending has had a cumulative effect, with significant and increasing community resourcing required to bring the Applicant to account for their actions, in addition to the adverse impact of the Applicant’s frequent offending has had on the community and his victims.
The cumulative effect of the nature and extent of the Applicant’s repeated offending, despite the:
(i) benefits received from non-custodial sentencing; and
(ii) four warnings from the Department (acknowledged by the Applicant) that they may risk cancellation of their Visa (discussed in the following reasons);
clearly attracts application of sub-paragraph (f) of paragraph 13.1.1(1) of the Direction in favour of a finding that the cumulative effect of his repeat offending has been of an extremely serious nature.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub-paragraph (g) of paragraph 13.1.1(1) of the Direction, as determinative of the nature or seriousness of the Applicant’s offending.
Sub-paragraph (h) in paragraph 13.1.1(1) of the Direction asks a decision-maker to determine whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Evidence before the Tribunal shows that the Applicant has been formally warned and counselled by the Department on four separate occasions. The first of which was by letter to the Applicant on 23 October 1995, clearly stating[134]:
“This letter is to inform you that as a result of your conviction for Assault Occasioning Actual Bodily Harm at Newcastle Local Court on 13 September 1995 you may be liable for deportation from Australia pursuant to Section 200 of the Migration Act 1958 (the Act).”
[134] Exhibit G1, G15, page 72.
The Applicant acknowledged and signed a receipt on the original copy of the letter, which was dated 30 November 1995. An interview was conducted with the Applicant, with interview notes submitted to the Tribunal dated 11 April 1996[135]. Following this a letter was sent to the Applicant on 23 December 1996, stating that in relation their potential deportation, the following had been decided[136]:
“The Minister’s delegate decided on 16 December 1996 not to order your deportation on the basis of this conviction. Nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered. Disregard of this warning will weigh heavily against you in the event of your case being re-opened”. [sic]
[Emphasis in original]
[135] Exhibit R3, TB8, pages 141 to 151.
[136] Exhibit G1, G14, page 71.
The Applicant signed a formal acknowledge of the letter on 11 January 1997. Clearly, the warning received by the Applicant from the Department regarding their criminal conduct and possible deportation should any further offending occur had no deterring effect on them.
The Applicant then went on to very seriously offend on 11 further occasions (with the final sentencing episode recorded on 27 January 2006). During the period between the Applicant signing the acknowledgement from the Department on 11 January 1997 through to May 2007, the Applicant committed 26 further offences, 13 of which carried custodial sentences and the remaining 13 attracting non-custodial sentences. The range of offences which the Tribunal views extremely seriously included contravening apprehended domestic violence orders, driving whilst disqualified, drink driving, possession of goods suspected of being stolen, assault of police, resisting or hindering police in execution of duty, and possession of prohibited drugs.
The Applicant then received a further warning from the Department on 9 May 2007, which stated[137]:
“On 14 November 2006 you were notified of the intention to consider visa cancellation under subsection 501(2) of the Migration Act 1958 (the Act). You are currently the holder of a Special Category Visa Subclass TY 444 granted to you on 28 December 1999.
You were asked to respond by 08 December 2006, a receipt confirmation dated 11 December 2006 received from Australia post confirms that you have received the notice sent on 14 November 2006. The department has not received any further correspondence or response from you. The department is providing you with another opportunity to respond, if the department does not receive a response from you by 30 May 2007 a decision may be made on the information held on file.
The purpose of this notice is to advise you that consideration is to be given to whether your visa may be cancelled under subsection 501(2) of the Migration Act 1958 (the Act) and, if it is liable to cancellation, whether it should be cancelled.”
[137] Exhibit G1, G13, pages 66 to 70.
The Tribunal notes the Applicant’s response to the Department that, “I have been unaware of any previous warnings sir sent by mail.”[138] After this warning in May 2007, the Applicant was convicted before the Lismore Local Court on 1 April 2008 for nine offences relating to possession of house breaking implements, shoplifting, failure to appear with a bail undertaking, custody of a knife in a public place, two counts of goods in personal custody suspected of being stolen (not motor vehicle), and three counts of knowingly contravening a prohibition / restriction order. The Applicant received a non-custodial sentence, entering into a bond which required them to be of good behaviour.
[138] Exhibit G1, G20, page 109.
Following this, the Applicant received another warning from the Department on 5 June 2009, which stated[139]:
“…The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia, and, in certain cases, cars on re-entering Australia.
I have attached the relevant text of subsection 5(1) of the Act for your information.
If you intend to depart Australia, you should be aware that under current immigration legislation, a New Zealand citizen makes a fresh application for a Class TY, Subclass 444 Special Category (Temporary) visa at the time of each entry to Australia. While I cannot pre-empt the outcome of any future decision, you may be eligible for the grant of a Class TY, Subclass 444 Special Category (Temporary) provided you have no overseas criminal convictions which total one year or more imprisonment, continue to maintain residency in Australia and have no re-offended after this letter was issued. It is important that you declare any criminal convictions on your Incoming Passenger Card.”
[139] Exhibit G1, G12, pages 64 to 65.
Following this last warning from the Department in June 2009, the Applicant then went on to appear before lawful authority on a further six occasions for 12 offences, seven of which carried custodial sentences, and are viewed extremely seriously by the Tribunal. These offences included assault occasioning actual bodily harm, stalk/intimidate intend fear physical harm, contravention of apprehended domestic violence orders, driving whilst disqualified from holding a licence, and drug offences.
Despite the Applicant being counselled by the Department, in very clear terms, that they risked facing deportation if they engaged in further criminal offending, the Applicant demonstrated no regard from the benefit of such a warning. The Applicant went on to offend after the initial warning had been received.
The Tribunal is of the view that sub-paragraph (h) in paragraph 13.1.1(1) of the Direction is enlivened, and that the Applicant took nothing from the four warnings issued to him by the Department about the risks he faced regarding his Visa, with the Applicant continuing to re‑offend despite his assurances he would not, and extremely seriously so.

The Tribunal is mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the Applicant’s circumstances. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President J Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501”[153].
[153] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction[154]. The learned Deputy President thought this paragraph leads a decision-maker to:
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.”
[Tribunal’s underlining]
[154] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection[155]:
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[Tribunal’s underlining]
[155] [2017] FCA 1466 at [76]-[77].
Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[Tribunal’s underlining]
In Afu v Minister for Home Affairs, Justice Bromwich said[156]:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[Tribunal’s underlining]
[156] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs, Justice Perry observed that[157]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
[Tribunal’s underlining]
[157] FYBR v Minister for Home Affairs [2019] FCA 500 paragraph 42. Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a) The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community[158].
(b) The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations[159].
(c) The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made[160].
(d) In assessing the weight attributable to Primary Consideration C, decision-makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker[161].
Analysis – Allocation of Weight to this Primary Consideration C
[158] Afu at paragraph 85.
[159] FYBR v Minister for Home Affairs [2019] FCA 500 paragraph 42.
[160] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph 74; (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[161] Ibid, paragraphs 77 (Charlesworth J) and 105 (Stewart J).
In ascertaining the weight attributable to Primary Consideration C, the Tribunal takes into account the following factors and findings:
(i)The Applicant has lived in the mainstream Australian community for the majority of his adult life, after arriving in Australian in 1989.
(ii)The removal of the Applicant may have an adverse impact on his adult biological children.
(iii)The Applicant has subsisted off the Disability Support Pension for the past 20 years[162].
(iv)The extremely serious and violent nature of the Applicant’s offending to date and its impact on other people in the community.
(v)The nature of the Applicant’s offending history, involving a lack of respect for lawful authority, the personal rights of others, and a refusal to follow the laws governing Australia.
(vi)The lack of current, independent and expert evidence addressing the factors giving rise to his propensity to offend, and measuring the level of the Applicant’s insight into the nature and severity of his offending.
(vii)The harm resulting from any return by the Applicant to their offending ways is extremely serious, such that any risk of similar conduct in the future is unacceptable
(viii)The Tribunal’s assessments of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[162] Exhibit R1, TB5, page 112.
Conclusion: Primary Consideration C
The Tribunal is of the view that the above factors, read as a whole in the context of this case, weigh very heavily in favour of not revoking the cancellation of the Applicant’s Visa.
The Tribunal accordingly finds that Primary Consideration C is of a very heavy weight in favour of affirming the non-revocation decision under review
OTHER CONSIDERATIONS
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
Paragraph 14.1 of the Direction directs decision-makers to consider international non‑refoulement obligations
The Tribunal has had regard to the directions outlined in Paragraph 14.1 of the Direction and is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction directs decision-makers to consider the strength, nature and duration of ties to Australia, whilst reflecting the principles at 6.3. Decision-makers must have regard to how long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Decision-makers are also required to have given consideration to the strength, nature and duration of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant has lived in Australia for the majority of his adult life and has family links here which, in the Tribunal’s mind, weigh slightly in his favour when having regard to the letters of support for the Applicant from his family, and when considering the oral evidence from witnesses. There is, however, no evidence before the Tribunal that the Applicant has made any positive contribution to the Australian community such that it could be seen to lessen the impact of the Applicant’s offending history.
Accordingly, the Tribunal is of the view that this Other Consideration (b) is of slight weight in favour of revocation. Accordingly, whilst this Other Consideration (b) in paragraph 14.2 of the Direction may overall weigh slightly in favour of revocation, it is outweighed by the very heavy weight the Tribunal has given to Primary Considerations A and C, both of which weigh in favour of non-revocation.
(c) Impact on Australian business interests
Paragraph 14.3 of the Direction directs decision-makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal has had regard to the directions outlined in paragraph 14.3 of the Direction, and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims
Paragraph 14.4 of the Direction directs decision-makers to take into account the impact that a decision not to revoke the Applicant’s Visa would have on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Based on the evidence before the Tribunal, it is clear there are multiple victims of the Applicant’s extremely serious and violent offending. The Tribunal notes that the Applicant’s former partner Ms M has submitted a letter of support dated 23 September 2019, for the Applicant remaining in Australia, despite the offending which she has been subjected to by the Applicant[163]. The Tribunal notes that the Ms M did not appear before the Tribunal as a witness to give evidence in support of the Applicant.
[163] Exhibit G1, G24, page 118.
It is the Tribunal’s view that the letter of support submitted by Ms M should be treated with caution. The Tribunal is not persuaded for reasons already outlined in this decision that the Applicant has satisfactorily addressed the predilections causing him to offend, such that the Tribunal could make a positive finding about the Applicant’s level of rehabilitation. The Tribunal is not persuaded that Ms M fully appreciates the potential risk of harm from the Applicant particularly in relation to his predilections causing him to offend, and the unacceptable risk this poses to his recidivism.
The Tribunal notes that there is no evidence as to how the other victims of the Applicant’s offending would be impacted.
In light of the abovementioned reasons, and in weighing the impact of a decision not to revoke the mandatory cancellation of the Applicant’s Visa, with the potential risk of future harm, the Tribunal finds this consideration has a neutral impact.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction directs decision-makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
With reference to the three factors within paragraph 14.5(1) of the Direction, the Applicant is currently 53 years of age and has not disclosed or substantiated any health issues, nor tendered any independent medical evidence that outlines any significant health concerns[164].
[164] Exhibit G1, G19, page 96; Transcript, dated 15 September 2020, page 69, lines 19 to 23.
The Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, where Senior Member Kelly stated the following at paragraph 101:
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”
The Tribunal is of the view that should the Applicant be deported to New Zealand he would suffer no language or other cultural barriers, given the similarities between New Zealand and Australia. Any hardships the Applicant may face with resettlement would likely be temporary, until he is able to establish himself, noting the Applicant is familiar with the New Zealand having grown up there prior to migrating to Australia.
The Tribunal is of the view that paragraph 14.5 of the Direction weighs slightly in favour of revocation, however the Tribunal is of the view that the weight of this factor does not outweigh the very heavy weight the Tribunal has found for both Primary Consideration A, and Primary Consideration C.
Summary: Other Considerations
With reference to Other Considerations, the Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 14.1 to 14.5 of the Direction, weigh in favour of revoking the mandatory Visa Cancellation Decision, they are by far outweighed by Primary Considerations A and C, which weigh heavily in favour of non‑revocation.
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations, are not engaged in relation to the Applicant.
(b)Strength nature and duration of ties, a slight measure of weight is attributed in favour of revocation of the mandatory Visa Cancellation Decision.
(c) Impact on Australian business interests, is not relevant to the factual circumstances of the Applicant.
(d)Impact on victims, is of a neutral weight.
(e)Extent of impediments if removed, a slight measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
Having reference to the Direction and to the totality of the evidence before the Tribunal, there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision. The Tribunal has had regard to the Primary Considerations referred to in the Direction, and the Tribunal finds as follows:
(i)Primary Consideration A weighs very heavily in favour of non-revocation.
(ii)Primary Consideration C weighs very heavily in favour of non-revocation.
(iii)Primary Consideration B is not relevant to the present application in light of the factual circumstances which apply to the Applicant. This consideration is of no weight and is not determinative of any finding.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that any of the weight the Tribunal has found in favour of revocation from the Other Considerations, even when combined with each other, outweigh the very significant and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 7 July 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

“ANNEXURE 1 – EXHIBIT REGISTER”

Number	Reference
G1	Amended section 501 G-Documents, pages 1 to 158, received 28 June 2020.
R1	Respondent’s Tender Bundle, pages 1 to 140, received 31 August 2020.
R2	Respondent’s Statement of Facts, Issues and Contentions, pages 1 to 23, received 31 August 2020.
R3	Respondent’s Further Tender Bundle, pages 141 to 160, received 3 September 2020.
A1	Letter of support from Tafaoga Diane Erika (Applicant's sister), two pages, (unsigned), received 2 September 2020.
A2	Letter of support of Malaefono Saifaleupolu (Applicant’s niece), two pages, (unsigned), received 2 September 2020.
A3	Applicant’s letter addressed to the Tribunal, pages 1 to 3, received 2 September 2020.
A4	Applicant’s letter addressed to the Department, pages 1 to 5, received 2 September 2020.
A5	Letter from Tafaoga Diane Erika (Applicant's sister) to the ‘Newcastle Court’, two pages, received 2 September 2020.

I certify that the preceding one hundred and ninety-seven (197) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola

.................................[SGD].......................................
Associate
Dated: 30 September 2020

Date of hearing:

15 September 2020

Applicant:

Mr Konelio Faaletonu Tuli

Appeared via video link

Solicitor for the Respondent:

Mr Cormac Burke

Sparke Helmore Lawyers

Appeared via video link

[2020] AATA 3817

30 September 2020

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