Tupu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Tupu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3508 (7 September 2023)
Division:GENERAL DIVISION
File Number(s): 2023/4370
Re:Poasa Tupu
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member McLean Williams
Date of Decision: 7 September 2023
Date of Written Reasons: 27 October 2023
Place:Brisbane

The Tribunal sets aside the decision not to revoke the mandatory cancellation of the Applicant’s visa, and now substitutes a decision to revoke the visa cancellation.
................[SGD]................
Member McLean Williams
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category Visa under section 501(3A) – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – Ministerial Direction 99 – Decision under review set aside and substituted
Legislation
Migration Act 1958 (Cth)
Cases
Khalil v Minister for Home Affairs [2019] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member McLean Williams
27 October 2023
INTRODUCTION

On 7 September 2023, the Tribunal set aside and substituted the decision not to revoke the mandatory cancellation of the Applicant’s visa, pursuant to s.501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
In accordance with the Full Federal Court decision in Khalil v Minister for Home Affairs [2019] FCAFC 151 (‘Khalil’), the Tribunal now publishes the Written Reasons for that decision. In Khalil, the Full Federal Court said:
[41]The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required to give its reasons, oral or in writing, within a reasonable time of the decision.
…
[48]What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…
[Emphasis added]
On 2 November 2022, a Delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category Visa (‘the visa’) under section 501(3A) of the Act on the basis that he did not pass the character test.[1]
[1] G3.
On 21 November 2022, the Applicant made representations seeking revocation of the cancellation decision (‘the revocation request’).[2]
[2] G12.
On 14 June 2023, the Minister’s Delegate decided that the power in s.501CA(4) of the Act was not enlivened, and accordingly the Applicant’s visa remained cancelled.[3]
[3] G4.
The Applicant then applied for a review of that decision in the General Division of the Administrative Appeals Tribunal on 21 June 2023, within the nine-day statutory review period.[4] The Tribunal has jurisdiction to review that decision, pursuant to s.500(1)(ba) of the Act.
[4] G2.
The Hearing of this application for review took place on 22 and 23 August 2023. At the Hearing, the Respondent was represented by Mr M. Hopkins of Minter Ellison. The Applicant was self-represented. However, the Tribunal also had the benefit of prior written submissions, as prepared by the Applicant’s former lawyer, Ms J. Samuta of Samuta McComber Lawyers, for the Applicant’s 21 November 2022 representation seeking revocation of the original cancellation decision. These submissions were considered by the Tribunal as part of this review.
At the Hearing, the Tribunal heard oral evidence from the Applicant, as well as from the following persons:
(a)his partner, Ms Fofoaivaoese Puepuemai;
(b)his sister, Ms Faatupu Fiamatai;
(c)Pastor at the Voice of Christ Full Gospel Church, Mr Reinatha Suisala;
(d)his brother, Mr Seuava Fiamatai;
(e)the Operations Manager at ‘DMP’, Mr Thorpe Sandvick;
(f)his friend and Samoan community member, Ms Su’a Salota Tafa’ifa; and
(g)his sister-in-law, Ms Megan Kia; and
(h)his niece, Ms Lagi Faamatuainu.
The Tribunal also had the benefit of written character references from:
(a)his adopted mother, Ms Talosia Tupu;
(b)his friend, Mr Michael Isaako;
(c)his friend, Mr Tauiai Taito;
(d)his family friend, Ms Kristy Olcorn;
(e)his Floor Manager at ‘DMP’, Mr Chris Stevens;
(f)his uncle, Mr Kuresa Cartwright; and
(g)the Band Leader at Voice of Christ Full Gospel Church, Mr Christopher Togafau.
The Tribunal also considered the documentary evidence submitted by the Applicant and the Respondent, as now detailed in the attached Exhibit Register, now marked as ‘Annexure A’ to these reasons.
BACKGROUND
The Applicant was born in Samoa in April, 1998.
The Applicant’s biological father was an alcoholic. The Applicant, his mother, and the Applicant’s siblings were all subject to what appears to have been regular domestic violence at the hands of the Applicant’s father. The Tribunal was informed that the Applicant’s biological parents would fight frequently, and that the Applicant ‘received a hiding from my father every day.’[5]
[5] G17, p.114.
The Applicant described that he had ‘lived a hard life in Samoa.’[6] He:[7]
lived at a farm and I felt like all I did was sleep, work, and eat. We were very poor.
At school in Samoa, I was always hungry. I didn’t want to go. I tried to avoid going to school, and my parents got angry at me. I lived a hard life in Samoa.
My father would come home after drinking and expect me to make food for him. Whenever I did not do exactly what my father wanted, he would give me a hiding.
[6] G17, p.114.
[7] G17, p.114.
The Applicant acquired New Zealand citizenship in March 2010 by reason of his having been adopted by his aunt, a New Zealand Citizen.[8] In relation to that adoption, the Applicant stated:[9]
This was a cultural adoption, and she is now my adopted mother. I call her my mum.
Talosia wanted to provide me with a better life than I had in Samoa, and I am very grateful to her for taking care of me and my siblings.
For the first time, I felt like I had a parent who supported me and wanted me. She treated me like I was her own son.
I had a special relationship with Talosia. Whenever she came to Samoa to visit, during my childhood, I would make food for her and take her to the markets and the farm. I would go up a tree to get a coconut for her when she wanted to drink some coconut juice. She would always trust me with money to go buy something from the shop.
I am very grateful for Talosia. She changed my life.
[8] G17, p.113.
[9] G17, p.114.
The Applicant arrived in Australia in March 2018. The Applicant has returned to Samoa on at least two occasions, yet only for relatively short periods.
The Applicant has a number of other family members in Australia; as well as a number of family members in Samoa. In the Applicant’s personal circumstances form he indicated that he has 8 aunts and uncles, 21 nieces and nephews, and 25 cousins in Australia.[10] In Samoa, the Applicant still has 4 uncles and aunts, 18 nieces and nephews, as well as 10 cousins. The Applicant’s biological parents also remain in Samoa. However, all of the Applicant’s siblings have moved to Australia.
[10] G13, p.65.
The Applicant’s work history in Australia commenced in 2018, and consists of his working in ‘Roof flashing’. The Applicant held his most recent employment working as a roof flasher from May 2018, until he was incarcerated.[11] The evidence before the Tribunal is that the Applicant has an immediate job to return to, in the event that he is successful in this application for review.[12]
[11] G13, p.67.
[12] G17; G18, p.123; Transcript day 2, p.112.
The Applicant is a congregation member of the Voice of Christ Full Gospel Church, and has been involved in that church community since his first arrival in Australia, in 2018.[13] The Applicant states that he has been ‘very’ involved in the youth congregation, and in other youth events conducted by that church. The Applicant has been involved in hip hop dancing, as well as in teaching Samoan traditional dancing, and performing with the church dance community on Sundays. The Applicant further states that every Sunday he would assist with the bible studies course with the younger children. Through the church, the Applicant has participated in volunteering within the community – including by undertaking lawn mowing, and fund-raising.
[13] G17, p.113.
The Applicant has continued practising his faith whilst in Immigration Detention. He has also maintained regular contact with his pastor, Mr Reinatha Suisala. The Applicant hopes to become involved in the Church again if he is released into the community, and hopes to himself become a pastor one day.
The Applicant is also involved in another Samoan cultural group, ‘Pouotoa’, and is involved by way of teaching children traditional Samoan dancing, as well as by participating in dance performances with the Pouotoa group at weddings, birthdays, and other community celebrations.
Applicant’s Relationship with His Son
The Applicant has one child ‘D’ – a son born in August 2020. D is currently three years of age.
Regarding his relationship with his son, the Applicant stated:[14]
When [D] was old enough to go to childcare, I would pick him up afterwards and take him to the playground or the swimming pool. I would help him take a bath or shower. I would also help teach him traditional dance.
Other times, Fofoa and I would take [D] shopping together, as well as to the beach. We took [D] to church with us every Sunday.
I have been able to keep up my relationship with [D] because I have entered into a parenting arrangement with Fofoa which allows me to see [D] once a day every day by video call, and allows me to have visits with [D] while I am in immigration detention. I saw [D] in person for Christmas in 2022.
I hope to be able to maintain my relationship with [D] in this way, or possibly mend my relationship with his mother so that we can be in contact more frequently.
When I speak with [D] on the phone now, he knows how to do a call and response with me. [D] can identify me in pictures. I feel so happy when I see my son.
[14] G17, p.120.
The Applicant’s son suffers from ‘very bad’ eczema:[15]
…He gets itchy at night when he is trying to sleep, and I am the one who used to wake up and get the flannel and warm water to treat his legs with a warm compress and make them less itchy. Once he is less itchy, he sleeps better.
I would always make sure [D]’s nails were cut to stop him being itchy.
Fofoa worked hard during the day, and it was my job to help take care of [D] at night. I would wake up with him and take him downstairs. I would play with him to help him calm down and get tired. I would make him food so he could sleep.
…
In the future, I want to help [D] more with his eczema, including getting him the best creams from the doctor and doing traditional Samoan massages to help him.
[15] G17, p.120.
The Applicant’s relationship with his partner, Ms Fofoaivaoese Puepuemai
The Applicant and Ms Puepuemai’s relationship commenced in 2017.[16] They attended the same school in Samoa, at least until Ms Puepuemai left Samoa in order to complete her schooling in New Zealand. After the Applicant relocated to Australia in 2018, he and
[16] G17, p.115.
Ms Puepuemai maintained a long-distance relationship, and would talk on the phone, communicate via Facebook, and send one another e-mails.
In April 2019, the Applicant invited Ms Puepuemai to his 21^st birthday party in Australia.
Ms Puepuemai came to Australia at that time, and also decided that she would not return to New Zealand, instead staying in Australia with the Applicant. The couple commenced living together immediately, in April 2019.
The Applicant’s criminal and traffic history
The Applicant has numerous criminal convictions, all of which relate to either assault or domestic violence-type charges, and all of which were committed whilst the Applicant was under the influence of alcohol. These will be discussed in greater detail, further below.
Traffic History
In addition, the Applicant has also committed a number of traffic offences in the period between January 2019 and August 2022. These include:[17]
(a)exceed the speed limit in speed zone by at least 13 km/h but no more than 20km/h – January 2019, June 2021 and February 2022;
(b)driving a defective vehicle – August 2022 and November 2019;
(c)unlicenced driving – August 2022;
(d)failure to stop at red traffic light – February 2021; and
(e)driving a motor vehicle under the influence of alcohol (mid-level) – January 2019.
[17] SG37, pp.123-125.
In total, the Applicant’s driver’s license has been suspended on five occasions.[18]
[18] SG37, SG38.
Summary of Criminal Offences
The Applicant’s criminal history in Australia is set out in the following table:

Court

Date

Offence

Sentence & conviction

Brisbane Magistrates Court

26 March, 2020

Assaults occasioning bodily harm

No conviction recorded

12 months’ probation

Beenleigh Magistrates Court

30 July, 2021

Assaults occasioning bodily harm

No conviction recorded

Beenleigh Magistrates Court

27 September, 2022

breach of bail condition

one month imprisonment

common assault – domestic violence

three months’ imprisonment

contravention of domestic violence order

three months’ imprisonment

assaults occasioning bodily harm

twelve months’ imprisonment

ordered to pay $200 in compensation

assaults occasioning bodily harm – domestic violence offence

twelve months’ imprisonment.

Assault Occasioning Bodily Harm – 8 March 2020

The Queensland Police Service Court Brief indicates that this offence occurred between midnight and 1AM outside a nightclub in Fortitude Valley.[19] The facts presented to the court at the time of sentencing indicate that the Applicant approached the victim outside of the night club, and punched the victim in the face, four times. The Applicant was arrested and conveyed to the Fortitude Valley Police Beat. At the Police Beat, the Applicant was verbally abusive and kicking at the door. The Applicant’s behaviour ultimately led to his being transferred to the Brisbane Watchhouse.
Assault Occasioning Bodily Harm - 15 March 2023
[19] SG2, p.14.
The police brief of evidence presented to the Court at the time of sentencing for this offence indicates that the Applicant and his victim had been at a birthday function at a licenced venue. The victim had been seated and waiting outside the venue for a lift home, with his partner and friends. The Applicant approached the victim and punched him the face with a closed fist, thus rendering the victim unconscious for a short period. The Applicant then departed.[20] After his arrest, the Applicant told police that he had punched his victim because the victim had been ‘talking shit’ at the party.[21]
[20] SG3, p.17.
[21] SG3, p.18.
At the Hearing, the Applicant explained the offence as follows:[22]
MEMBER: What happened that night? I went to my cousin’s birthday. You can drink for free in there, in the bar. I was drinking.
MEMBER: You can drink for free in the pub?---Yes, in the bar.
Somebody had put on a tab, had they?---Yes. So, I was drinking – my cousin grabbed me a beer in there. We were drunk in there. Drink heaps before they locked down. Because – and in two hours they let us to free drink and then close it. So, I was drink heaps. Me and my cousin was drinking heaps. And then the last time they went in the day to grab another beer and then some of the random – my friends, my cousin’s friends, they came for his birthday, for a birthday. And then they talk shit to me in front of the bar. And then I was trying to tell him, mate I just here to grab some beers and then (indistinct). And then the lady was there, I don’t know if it was the owner of the bar. They kicked me out because I talked to this person. Mate I used to fucking smash you and then I go straight to go home. So, you’re not going to come here and destroy – this is my cousin’s birthday.
MEMBER: So you got kicked out of the pub, did you?--–Yes. And then they kicked me out from the bar. And then he’s coming out and he’s trying to fight me. He wants to fight me in the club. So, he’s coming out with me and then sitting in there. And then I was standing inside because they are I need to come out so he’s going to come straight to me. So, he’s having a conversation outside. He took himself outside with other ladies. And wait for me to come out from the bar. And I was just there and waiting in there. And I already told my older brother there’s someone out there waiting for me. He wants to fight me. And then I told my older brother to take me out. And then my older brother take me out. My older brother take me out. And I was still thinking about – still hate this guy. And then come behind him and - - -
MR HOPKINS: It says you came behind him and punched him because you were already angry with him?---Yes.
So he was waiting outside and you had come outside and seen him?---Yes. And then we had a fight. Then I punched. And then he’s coming straight to me. He wants to fight. Because they’re ready to come to a fight with me.
But you started the actual physical fight?---Yes.
Domestic Violence Offence – 30 October 2023
[22] Transcript day 1, p.70.
On the night of 29 October 2023, the Applicant held a party at his home.[23] His evidence when before the Tribunal was that he had consumed two six-packs of beer, as well as a half-bottle of vodka.
[23] G17, p.115.
The Applicant’s partner, Ms Puepuemai, had been displeased with the crowd of people in attendance at their residence. Ms Puepuemai took D to stay the night with family. Subsequently, the Applicant went looking for Ms Puepuemai. At about midnight, the Applicant and Ms Puepuemai had a verbal argument. Ms Puepuemai was holding D at this point and D began to cry. The Applicant then slapped and grabbed at D, thus causing scratches to D’s head and right arm. The scratch to D’s head started bleeding. The scratch to D’s arm exposed raw flesh however did not bleed.
When the Applicant left, Ms Puepuemai attended the Logan Central Police station with D, and reported the matter.
Assault Occasioning Bodily Harm – 26 November 2021
This incident occurred after the Applicant had been drinking at his older brother’s house. The Applicant had consumed one six-pack of beer and had been sharing a bottle of Jack Daniels as well as a bottle of Jim Beam with his cousins.
At approximately 10:20pm on 26 November 2021, the Applicant was making a commotion outside on the street. The victim of this event had walked outside his home to investigate the noise and observed the Applicant ‘shadow boxing’ and screaming at another person at the end of the driveway. The victim had then said to the Applicant, ‘you all good mate?’ The Applicant turned to the victim and replied, ‘What what?’ The victim then said, ‘I’m just checking to make sure you’re all good?’ The Applicant started quickly stepping towards the victim saying, ‘yeah yeah.’ The victim then put both his hands up, in an attempt to de-escalate the Applicant’s behaviour. However, rather than de-escalate, the Applicant has then run towards the victim, and commenced to throw punches towards the victim’s forehead, lip, and the right side of his jaw.
Domestic Violence Offence – 22 January 2022

On 22 January 2022, the Applicant had consumed two six-packs of beer.[24]
[24] G17, p.115.
At approximately 8pm, the Applicant and Ms Puepuemai became engaged in a heated verbal argument regarding where the couple were to spend the evening.[25] The Applicant became aggressive, and Ms Puepuemai became fearful that she would be physically harmed. Shortly after this argument, the Applicant pinched D’s leg and used his hands to slap the child. After this physical interaction, the Applicant stated to Ms Puepuemai, ‘I will choke the child.’ Ms Puepuemai fled to a neighbouring address and contacted the police.
[25] SG6, p.32.
Two weeks after the incident on 22 January 2022, the Applicant’s family met with

Ms Puepuemai’s family for a ‘cultural discussion’ regarding this incident.[26] Both families are members of the same church congregation. The Applicant’s family apologised, and the Applicant agreed that he would change. For reasons further elaborated below, the Tribunal attaches significance to this family meeting, and regards it as an important watershed.
Sentencing for Domestic Violence Offences
[26] G17, p.115.
In November 2021 the Beenleigh Magistrates Court made a temporary protection order against the Applicant (by consent), requiring that the Applicant be of good behaviour, and not commit further acts of domestic violence towards Ms Puepuemai, and D.[27]
[27] SG17.
In January 2022, the temporary domestic violence order was varied, so that (among other things) the Applicant was prohibited from being within 100m of his partner’s residence; prohibited from locating or attempting to locate his partner or child (‘the aggrieved’); and generally prohibited from contacting or attempting to locate his partner or child, or from following or approaching either his partner or child.[28]
[28] SG18.
In March 2022, another domestic violence order was made against the Applicant, again by consent, and again in respect of his son D and Ms Puepuemai, which remains operative until 21 March 2027.[29]
[29] SG13.
In February 2023, the extant protection order was varied, again by consent.[30] The protection order, now prohibits the Applicant from: contacting the aggrieved, or approaching to within 100 metres of the aggrieved, except for specific purposes such as attending counselling, or having contact with his child as set out in writing between the parties; as well as requiring that the Applicant be of good behaviour to the aggrieved, and not commit domestic violence. Further, the Applicant was prohibited locating or attempting to locate the aggrieved and from remaining at, entering or attempting to enter, or otherwise approaching to within 100m of the aggrieved’s home. There is a condition that nothing in the order prevents contact between the aggrieved and the Applicant whilst the Applicant is detained in a Queensland Correctional Facility or Immigration Detention. This protection order remains extant, and is currently in effect until March 2027.[31]
[30] SG13.
[31] SG12, p.47-48.
An Individual Management Plan Review completed in immigration detention in December 2022 describes the Applicant as ‘polite and respectful towards staff and other detainees and appears to geta along with the other occupant of his room and maintains a good level of personal hygiene.’[32]
[32] G23, p.159.
The Applicant was released from correctional custody on 24 November 2022 and was moved to Immigration Detention.[33]
[33] SG34, p.109.
The Applicant’s Relationship with Alcohol
In regards to his relationship with Alcohol, the Applicant has stated:[34]
I know I have a problem with drinking alcohol, and I know my drinking causes me to become angry. On a weekend, I would usually have about two six-packs of beer.
I would get angry if I was feeling lonely, and I would drink to make myself feel better.
Drinking would make me want to fight with people. I would think about what had happened to me in Samoa when I was drinking. I was not in the right headspace when I was drinking.
[34] G17, p.116, paragraphs 55[57.
Rehabilitation Efforts
The Applicant has been involved in the following:
(a)a domestic violence and anger management course with YFS;
(b)the Virtual Early Recovery Group with the Logan Alcohol and Drug Service;
(c)domestic violence and anger management course – the Applicant completed four weeks of this course in February 2022 until his incarceration;
Evidence of Other Witnesses
Ms Fofoaivaoese Puepuemai
Ms Puepuemai is the Applicant’s partner and is the mother of their child, D.[35] Both

Ms Puepuemai and D are also specified as the persons protected by the domestic violence protection order, and each of them are the victims of the Applicant’s domestic violence offending. Ms Puepuemai is a New Zealand Citizen, having moved from Samoa to New Zealand when 10 years of age. Ms Puepuemai has resided in Australia since 2019, on a TY444 Visa.
[35] G20.
Ms Puepuemai provided evidence to the Tribunal that her immediate family now all live in Australia, and that her son’s paternal family live in Australia, as well.[36] Her son has a close relationship with both his maternal and paternal relatives. Ms Puepuemai stated that her own life, and D’s life are firmly fixed in Australia.
[36] G20.
At present, there is a parenting agreement in place between Ms Puepuemai and the Applicant that allows the Applicant to have contact with his son via video call, or by means of in-person visits at the immigration detention centre.[37] The Applicant is in daily video contact with D. D also visits the Applicant at the immigration detention centre at least once per month, and Ms Puepuemai willingly takes D to the immigration detention centre for these purposes. As became apparent to the Tribunal during the hearing, Ms Puepuemai bears no residual animosity towards the Applicant for his past acts of domestic violence, and Ms Puepuemai made it abundantly clear to the Tribunal that she very much wishes to remain in a domestic relationship with the Applicant, and for the Applicant to be available in Australia to act in the role of father for D.
[37] G20.
In relation to the Applicant and the Applicant’s relationship with herself and D,

Ms Puepuemai stated:[38]
[38] G20.
Poasa understands the impact of his behaviour on me and his son. He sees how hard we are doing it now both financially and emotionally. Poasa constantly expresses how sorry he is for putting us in this position. He shares a lot when we talk, we both do. I carry a lot of guilt that my son may never get the chance to be raised by his father who loves him very much. I carry that guilt because I contacted the police about Poasa’s behaviour that led to charges and prison. I don’t regret that I contacted the police because it was the right thing to do, and I wanted Poasa to be accountable and become a better version of himself. However, I still feel so much guilt at the thought that this process might break one of the most special bonds for my son and deny my son the opportunity of growing up with his father. I know that this will cause long term trauma and damage to my son and will show as he grows up. I often share my feelings of guilt with Poasa, and he always makes sure I know that this situation is his doing and not mine. He always takes responsibility for the position that we are in now and reassures me that I should not feel the guilt that I feel.
Poasa talks about how he learned that drinking alcohol was a major problem, and he took me and his son for granted. It has been a hard lesson, but I can see that he really has learned from it and is a better version of himself. In the past he would never talk openly or reflect in the way he does now. He is much more open and has matured so much.
Poasa and I also talk about how inappropriate it was for him to take his anger out on our son. He talks about how much he has learned through the process of being charged going to jail. I’m overwhelmed to say Poasa has learned a very big lesson, he has grown so much and is committed to never cause harm to his son and let anything jeopardise his opportunity to be with his son. Poasa is also committed to continue learning and growing when he is out of detention.
I truly believe that Poasa has always been a great person, but he needed help to change, and he is now making the most of every opportunity.
I try to stay strong for my son and I hold on to hope that Poasa will be given a visa to stay in Australia. I desperately want this for my son, and me.
I am very worried about the long-term emotional impact on my son if he grows up without his dad. The bond between father and son is very special, I see this bond with Poasa and [D] when they interact every day. No one could ever fulfil the role of his dad. I know this from experience. I was taken away from my dad at a young age. My mum remarried; I have a stepdad who I respect very much but my stepdad could not replace my father. My mum and step-dad moved us to New Zealand when I was young, and this made it so difficult to have a relationship with my dad who lived in Samoa. I resented my parents for this, for making me grow up without having both parents in my life. It caused to much damage to me, especially in my teenage years and it affected my relationship with my mum, step-dad and my dad. I was a child but I felt like they took away my chance to grow up with my mum and my dad. I never want [D] to experience what I did as a child.
If Poasa is not allowed to stay in Australia, it will affect me so much too, both emotionally and practically. I am scared for my own mental health, knowing the impact it will have on our son if he must grow up without his father in his life. I also feel guilt and overwhelmed with sadness. Makes me very depressed. It has been so hard for me, knowing that I don’t have the one person who will jump first in line to help me out with my son. No one to help me pick up my son and help me cater to his eczema needs and no one to help me financially.
Since the birth of our son, Poasa played a big role in our son’s life. He would wake up to him at night and feed or change him, he’d help get him back to sleep and take him to childcare. Poasa would share the jobs of feeding and bathing our son, he’d take him on outings and to church, spend time with him playing and teaching him traditional Samoan dance involving spinning practice sticks. Our son loves doing this with his dad.
Poasa talks a lot about the future with his son. We both want our son to have the opportunity of having mum and dad in his life every single day. Poasa talks about the things he wants to do including spending time with him around both of our extended families here in Australia. Poasa talks about wanting to take [D] to school, to cut his hair (something Poasa always did for [D]), cook him dinners, go to church together, introduce him to different island foods in Australia and teach him about our Samoan culture. He wants to be part of the day-to-day things in our son’s life. He also wants to share big moments with his son and talks about taking him on holiday to Samoa to introduce him to his biological parents.
Family is very important to Poasa and I know that [he will] be there every day for his son, and for me. I can see that he now puts his son first in everything he says and does. His son means everything to him and he will be with his son every step of his life, and every big milestone if he is given the opportunity to remain in Australia.
I worry so much for my son and his future if his dad cannot stay in Australia and walk with him each day and raise him. As our son grows older he will ask questions and eventually understand why his father cannot be with him in Australia. I worry about what this will do to my son’s development and emotional state. I believe it would completely change the way his life will play out, in a bad way. I think it would psychologically damage my son.
I do not want to consider moving with my son to New Zealand to be with Poasa if he is deported. This will take our son away from everything he knows, including his extended maternal and paternal family who he has had a very close relationship with since he was born. It will also remove me from my family, my employment and all my positive supports, and I will feel very isolated in New Zealand. This would affect both me and my son. Poasa and I are in the process of repairing our own relationship and doing this with the support of our families here in Australia I don’t know what the future holds for Poasa and I but we are both very committed to raising our son. I feel very stressed and worry that if Poasa is deported, as a mother I will be forced to make a choice between living in New Zealand so my son can be raised by his dad and leave behind every family connection and support we all have in Australia, or choosing to stay in Australia and being responsible for denying my son the opportunity to be raised by his dad. I never want to be in a position to have to choose this, both options have big consequences for me and my son. I feel any decision I make will damage my relationship with my son later in life, he will resent me for the choices I make for him as a child, just like I resented my parents for taking me away from my dad as a young child. I don’t want to ever repeat the same mistake that my parents made with me. I strongly believe that having two present and loving parents growing up is crucial for our son’s development and happiness.
Please give my son the biggest gift in life, the gift of having a childhood with a mum and a dad loving him very much and surrounded by the love and support of close-knit extended family here in Australia.
At the Hearing, the Tribunal also received evidence that Ms Puepuemai intends to seek to revoke, (or at least further vary) the protection order, in the event that the Applicant’s visa cancellation is revoked.
The Applicant’s son D has been in and out of hospital for severe eczema since he was three months of age. Prior to his imprisonment, the Applicant was actively involved with his son’s daily skin care treatment. This often entailed keeping the infant D busy, in order that he would not scratch, and thereby further injure himself.
Ms Faatupu Fiamatai
In a letter dated 27 September 2022, Ms Fiamatai, stated the following in support of her brother:[39]
Poasa Tupu has always been an upright character in the community and our family, whether it is helping a stranger in need or working hard at his job which he supports his family with.
While it is unfortunate that he has made some bad decision, resulting in the very serious case at hand. I believe that he has made a significant change in his attitude and behaviour over the period of times he’s been attending courses that is offering the help he seeks.
Poasa Tupu has expressed a deep sense of remorse in making a serious mistake and I believe in his ability to correct himself with the support of his family.
It is my sincere hope that the court takes this letter into consideration. Despite the case I still believe Poasa Tupu is trying his best to cope and right his mistakes by becoming the better person I wish for the court to see.
[39] G18, p.125.
Ms Fiamatai also provided a statutory declaration in support of her brother.[40]
[40] G19.
Samoa
Back in Samoa, Poasa and I were in the same situation. Our father was an alcoholic. We would get hidings from him all the time, no matter what we did. We could never do everything around the house well enough for him.
Poasa would do whatever our father asked of him, including going fishing or going out to do traditional dancing to help make money for us to survive.
Our father was domestically violent. He would bash up our mother. He would go gambling or playing pool, and if he lost, he would come home drunk and a different person. I remember seeing him walk in, swearing, and knowing we would all be getting a hiding tonight.
Poasa’s Offending
I know that Poasa has been very affected by alcohol, just like his father. I know he is starting to regret his decisions.
Since January 2022, I have seen Poasa change. When he was in the community, he was only drinking about two bottles of beer. I’d hardly ever see him have a six-pack.
He would regularly play video games to distract himself, and he would take his son to the park. He was getting involved in life again.
Now, more than ever, I feel like I can trust Poasa to be responsible and not get into trouble. I feel that he won’t reoffend because he will be too worried about going back to jail or being deported to New Zealand. I know that this is his last chance.
We know he has changed, here in Australia. It would be devastating if he had to go to another country, where he has never been before, and learn everything all again.
Poasa had a very rough life back home in Samoa, and Australia was his escape.
Poasa’s Family
I have a good relationship with Fofoaivaoese Puepuemai (“Fofoa”).
Fofoa and Poasa used to both stay at my house, with myself and my partner Adam … During that time, it was a really big help because Poasa would financially contribute towards the household and pay half of the rent.
Fofoa does not stay with me anymore, and is currently living with her mother.
However, I am still involved with the care of Poasa’s son, [D], in order to assist Fofoa. My family want to ensure that we are helping out as much as we can, on Poasa’s behalf. I take care of [D] two days a week, on a Wednesday and a Saturday. I have a good relationship with [D].
I treat [D] as if he was my son, and take over his care when Fofoa needs to do something else. Because of [D’s] eczema, he can be difficult to look after.
I saw the way Poasa looked after [D] when they lived together. He would take [D] to his traditional dancing shows, practice traditional dancing with him take him to go see his cousins, or go get food together.
Poasa and [D] video-call every day, and I am happy that [D] is able to see his father. I am involved with organising visits to the immigration detention centre, and I love seeing them both happy.
I really miss having Poasa and his family living at my home. I miss the family atmosphere, I miss the noise and the excitement of [D]. I’m a really family person, and I have not kids of my own. I just want to support [D] as much as I can.
Separation from Poasa
If Poasa were deported to New Zealand, it would be absolutely heartbreaking for me. It would be as if he had died.
We are really close, and I am really concerned about him. He doesn’t know how to speak English properly, and is not good at understanding what he has read. He doesn’t know anyone in New Zealand at all.
Over the recent holidays, when I met with our brothers and sisters on Christmas Day and New Year’s, my aunty (Poasa’s adopted mother) was crying about the possibility of Poasa being deported. It was devastating not to have him home for Christmas in the first place – we could barely thing about what it would be like if he could never come to a family event ever again.
My brothers and sisters had a family meeting to talk about Poasa, and none of us is willing to give up our lives here in Australia to move to New Zealand and support Poasa. I can’t go to New Zealand, as my partner Adam’s family are here.
We are just hoping for the best. We are trying to stary positive about his case. We haven’t really talked about what would happen if Poasa’s case does not go well, but we are scared he might do something to himself and commit suicide.
We know that Poasa really wants to take care of his family, and we highly value family as well, so it would be devastating to see them separated.
The Tribunal had the benefit of also hearing oral testimony from Ms Fiamata, who described the endemic nature of violence in Samoan culture, and how growing up in this culture had caused difficulties for the Applicant when initially adjusting to the different cultural expectations regarding violence within the Australian community. In her opinion, this had led to her brother taking some missteps, the nature of which are now fully understood by him:[41]
[41] Transcript day 1, pp.34-36.
MEMBER: I need to understand this. This is important. Mr Tupu came to Australia when he was about 19 or 20?---Yes.
MEMBER: So he’d finished all of his education, didn’t do any education here. Came to Australia. Did he live with you immediately or did he live somewhere else?---Yes.
MEMBER: He lived with you?---With – sorry. We all lived together
MEMBER: In the one house?---Yes.
MEMBER: Okay. And he went to work?---Yes.
MEMBER: He was working in roofing?---Yes.
MEMBER: And so he has been in trouble with the police a few times. A few nightclub assaults and things like that. You’re aware of all of that?---Yes. Yes.
MEMBER: All right. What’s your understanding of how all those things happened?---He didn’t really – he just thinks that as the, you know, he still had that man of Samoan, like, life. And not understanding that Australia law.
MEMBER: All right?---And he has regret, you know. Once all that, and I – we did help him and trying to get him – that’s not the same as Samoa.
MEMBER: All right?---But I guess because he had that – my dad’s kind of way. But he does regret everything. And he has learned a massive lesson from it.
MEMBER: When did he start to regret it? Because he kept doing it for a while?---Yes. Last year or the year before. Once we‑‑‑
MEMBER: What do you think made him regret it? Was it going to jail?---Just his family. His son. And pretty much us. And not once did he leave Australia
MEMBER: All right. So you think the situation he put himself in, you know, having been sent to prison and then, because he went to prison, he’s been put in immigration detention. And he’s likely to get deported. Do you think all of that’s made him realise that he’s made a big mistake?---Yes.
MEMBER: All right. Because he now understands, you know, he’s been cut off from his family and his son and the partner. All right. Okay. I understand all of that, yes.
MR HOPKINS: Thank you, Member. You mentioned that at the time Mrs Herbert had been committing his offences he hadn’t appreciated the difference between Samoa and Australia?---Yes.
Can you just tell me a bit more about what you mean by that? What those differences are?---Because he still had – it’s still early for him to know he didn’t quite get the Australian ways. And, because – if he came earlier, when he was little, then he would be okay. But he still had that, you know, think the same as how he was in Samoa, so we do keep telling him but it’s not the same. Once the cops, you get caught with the cops, that’s it. Like, and obviously now that’s happening and he has regret. That’s why.
Is it fair to say that in Samoa it’s acceptable to use violence as a mean?---You mean Australia?
As a means of solving problems that you have and disputes with people?---In Samoa only, I’ll say. But we do follow the Australia law and everything. Because it’s not the same. We don’t do it how people are in Samoa, we’re not as worse. But – we – yes.
But in Samoa, it is a fairly common?---Yes.
Problem-solving strategy to use violence?---Yes.
And that’s the same problem-solving strategy that Mr Tupu had used on the occasions that he was assaulting people?---Yes.
Mr Reinatha Suisala

Mr Suisala wrote a letter in support of the Applicant dated 23 November 2022.[42] He stated:
[42] G18, p.127.
On behalf of the Voice of Christ Full Gospel Church congregation, I Reinatha Suisala (Senior Pastor) wish to acknowledge the above mentioned as an active youth member of our church.
Mr Poasa Tupu became a youth member of our congregation in 2018. He attends our Youth activities regularly; he was then embraced by our congregation as a result of receiving Christ as his personal saviour.
Late last year Poasa, his partner and his child, confided in me regarding an unexpected accident that took place. With full remorse, upon hearing this news

Mr Tupu agreed to do counselling with his family every Thursday night at church.
Since then, he has shown great commitment in realizing his spiritual obligations to the church. A major part of this commitment has been the genuine repentance of all his wrongs, coupled with a genuine desire to move forward; to leave the temptations of his past life behind.
Mr. Tupu always attending service with his family. He also participates actively and enthusiastically in other church activities and obligation. Such contributions include his involvement in our Youth Outreach program, Youth Seminars and Young Adults ministry.
The Tribunal had the benefit of hearing from Mr Suisala at the Hearing. In regards to the Applicant’s character, he stated, ‘I don’t know why he end up with this kind of situation, because he is a lovely man in our ministry, and he is a good young man.’[43]
[43] Transcript day 1, p.47.
Mr Thorpe Sandvick
Mr Thorpe Sandvick, is the Operations Manager at ‘DMP’, the employer of the Applicant prior to his imprisonment. In a written statement dated 26 September 2022, Mr Sandvick said the following in support of the Applicant:[44]
… [I] have been working in this position with Poasa for approximately 9 months.
In the time I have known and worked with Poasa I have found him to be reliable, trustworthy and an asset to the [DMP] team. Poasa always works to the best of his abilities and at times, when he has received negative feedback, I have seen genuine attempts to correct such behaviour.
After hearing that Poasa is appearing at court facing serious charges I was genuinely shocked as this behaviour does not reflect the Poasa that I see at work daily. I have never seen Poasa to be aggressive or intimidating at work and would not tolerate should it ever happen. He is softly spoken and well liked amongst his fellow team members.
… I believe he has shown genuine remorse for his actions leading him to front the court. He has great prospects of being a valued and contributing member of society.
[44] G18, p.124.
In a further written statement dated 23 November 2023, Mr Sandvick stated:[45]
I am writing this letter as a character reference for Poasa Tupu. … Poasa works as a machine operator at [DMP]. This position is particularly important as it requires fast and efficient operation and is responsible for setting the production levels each day.
During the time I have managed Poasa I have found him to be reliable, a good team member and able to take feedback, both positive and negative, and change required behaviours.
I have never had, nor heard of, any incidents where Poasa has been aggressive at our workplace. In fact I have found Poasa to be polite, well-mannered and softly spoken. My daily experiences with Poasa have left me shocked as to his behaviour causing him to be in the position he is now. It is completely contradictory to the behaviour we witness in the workplace each day.
I am confident that Poasa will not put himself in another position that would jeopardise being away from his family or work commitments again. We have kept Poasa’s full time position available for him if he is able to return. Both myself and his fellow team members would welcome back Poasa to DMP should you grant him that privilege.
[45] G18, p.128.
The Tribunal also had the benefit of hearing oral evidence from Mr Sandvick at the Hearing. At the Hearing, the following exchange occurred:[46]
… Now, notwithstanding the fact that you know he has some criminal history and did go to jail, and he is in immigration detention. What do you think of him as a worker, would you have him back?---I would have him back, yes.
[46] Transcript day 2, p.112.
Ms Salota Tafa’ifa
In a letter dated 27 September 2023, Ms Tafa’ifa had the following to say in support of the Applicant:[47]
I write this letter as a testimony of Poasa Tupu’s character within our Polynesian community. … I am the Founder and Director of POUOTOA which I run alongside my uncles. POUOTOA is a group of individuals that come together every weekend and perform for our community when needed. The boys do fire knife dancing which is traditional to Samoa and girls do traditional Siva Samoa. It is a group I created to keep my generation rooted in our Samoan culture and Mr.Tupu is a huge part of this.
Mr.Tupu has been with POUOTOA for three (3) and a half months and is one that is loved, valued and respected within the group. His caring personality is one that gets everyone comfortable with him and his talent. Mr.Tupu has come a long way since first joining – his acts of service not only to POUOTOA but the Polynesian community is one that makes me personally proud. Mr Tupu is deemed as one of my most reliable people and I truly hope that my letter will suffice and do good for him.
[47] G18, p.126.
Ms Tafa’ifa wrote a further letter in support of the Applicant dated 29 November 2022. Relevantly:[48]
[48] G18, p.131.
I am writing in support of Poasa Tupu. My name is Su’a Salote Tafa’ifa (Director and Co-founder) of Pouotoa, a cultural group Mr. Tupu was heavily involved with since the beginning.
Before Mr.Tupu joined Pouotoa, myself as well as the whole team were aware of his criminal charges however it did not change our view on him as an individual willing to grow and learn within the team. His passion for the Samoan culture and love for traditional dancing was something we considered, he proved to be more than this and being onboard to help with our goals as a cultural group which are:
- Teaching our younger children the Samoan Language
- Teaching Samoan traditional dancing
- Volunteering for Pacific Events
- Offering support to the Samoan community
- Performing at Cultural Events
Mr. Tupu was well respected within the team. He was reliable and would always be happy to assist with our classes by preparing meals and running errands. It got to the point where he was teaching his own classes with our senior class members.
He made sure he proved himself worthy of the opportunity given to him and I am proud to say he surpassed our expectations and was then given a Team Leader role for the boys group.
Poasa Tupu definitely made some poor decisions in the past that lead to getting in trouble with the law, however – I can testify that Mr.Tupu has come a long way in correcting his mistakes and doing his best not only by his family but also by our team, by our community and most importantly by his family and son.
I hope dearly that this letter will help give you a glimpse of how much of a turn Mr.Tupu has taken in the right Direction. I also hope it will help bring him home to his family and to our Pouotoa Team as I mentioned above- he is a huge part of our group.
The Tribunal had the benefit of hearing from Ms Tafa’ifa at the Hearing. At the Hearing, the following exchange occurred:[49]
Knowing know that Mr Tupu has committed a total of five assaults, including two against his son, who was less than two years old at the time, does that raise any concerns to you about Mr Tupu?---I would say it does, I’m not lying, it does. But I’ve also seen him work in my group, and I’ve seen the stuff that he’s done in my group. So another thing with my group is, we do take on people that, you know, have pretty much nothing else to do, and need to focus their energy into something that’s good. I do have a couple of people who have expressed, you know, similar things to

Mr Tupu and are doing very well in my group and look forward to coming in and teaching the kids. It’s not would you go into the elderly homes, like the old age homes and we perform for our elders that are in there. So this pretty much provides something for them to do. This does, again, raise some concerns, but I haven’t seen that side, and I’m sure that’s doing – like I’m only speaking on what I’ve seen with Mr Tupu in my group.
…
All right, and in light of all these things you’ve been told about Mr Tupu that you weren’t aware of, would you have him back in your group?---I would say yes, I would take him back in my group. Mainly to – he’s done a lot of bad things by the sounds of it, with everything that’s been brought to light today, but he’s also done good in my group, and I believe that with working my groups help, he can stay out of trouble and be busy with everything that we do as a team.
[49] Transcript day 2, p.118.
Ms Megan Kia
In an undated letter, Ms Kia wrote the following in support of the Applicant:[50]
My name is Megan Kia I am an Australian Citizen by birth, I currently work as Clinical Nurse in Mental Health and Addiction Services. I am writing a character reference for my brother in law Poasa Tupu whom has had his Australian visa cancelled and is scheduled for deportation to New Zealand. I am asking if you can please reconsider the cancellation of Poasa’s Australian visa.
Poasa Tupu was born and raised in Samoa in a low social economical environment by his biological parents. Poasa is one of 9 siblings being the 2nd youngest. Poasa was adopted by his Aunty in Australia whom has dual citizenship NZ/Australia. Poasa and his younger brother arrived directly into Australia on 23/3/2018 from Samoa at the age of 20yrs. To my knowledge Poasa has always been a respectful, happy, caring and honest young man with strong family and religious values and has always engaged in fulltime employment since arriving in Australia. Poasa is in a long term loving and supportive relationship with his partner and they have a beautiful 2 year old son.
Poasa unfortunately Poasa’s life started to spiral out of control when he began to misuse alcohol as way of coping with Covid pandemic/ isolation/ life stressor- impacts of Covid 19 restrictions/ isolation/ family pressures and responsibilities back in Samoa to his parents, and his growing family responsibilities to his partner and son, ongoing adjustments of life in general transition from slow lifestyle in low social economical environment, to a fast paced, stressful and full of responsibilities. Poasa struggled and self medicated with regular alcohol consumption that I believe has contributed to his current charges. I believe that Poasa is remorseful and willing to seek help and participate in rehab to overcome his alcohol use.
Can we please ask that you please consider reinstating Poasa’s Australian Visa – he has next to no family supports/ connections in New Zealand. His entire life and supports are here in Australia he has his adoptive mother, sisters and brothers as well as his biological x4 brothers, and x1 sister and numerous cousin[s], aunties and uncles here in Australia and not to mention the most important his partner and 2 year old son. Poasa is very remorseful and it would be in his and his families [sic] best interests to reinstate his Australian visa.
[50] G18, p.133.
At Hearing, Ms Kia has the following to say in support of the Applicant:[51]
I can support him. I can give him the, you know, access to services that I’m aware of, working in mental health and addiction services myself. I know there’s a lot of access out there; it’s just a matter of knowing what’s available.
…he’s a good kid and he just needs a chance, you know. He was brought up in that low social economical environment and he just hasn’t learned how to cope properly in the stresses of life in Australia, and then alcohol being readily available, too. He’s made some wrong choices, but I think with a second chance and with support, he will be able to be a[n] upstanding citizen.
[51] Transcript day 2, p.123.
Ms Lagi Faamatuainu
Ms Faamatuainu wrote a letter dated 29 November 2022 in support of the Applicant:[52]
… I am writing this letter on behalf of Poasa Tupu’s nieces and nephews as a personal character witness for Poasa Tupu who is our dearest uncle.
We have a close relationship with our uncle. He’s a great role model not only to me but to the rest of his nieces and nephews. My uncle spends most of his quality time with family. Poasa demonstrates love, loyalty and respect which my cousins and I admire so much. Uncle Poasa is the type of person that will make sure we leave his home with a full stomach by always making sure we are fed before leaving his home.
During his time here in Australia he has experienced a lot of ups and downs and I can definitely testify that the good outweighs the bad. I have seen a positive shift in his attitude in the past few months as he has shown a lot of remorse and regret every single day whilst encouraging us to always do the right thing and do better and to definitely stay away from alcohol.
On behalf of my cousins, we are all determined to guide and support our uncle through this period as much as possible. It isn’t an easy journey but he has come a long way so far and we are proud of the steps he has taken.
It’ll be sad to have our uncle taken away from us because of past mistakes he’s made but praying that the decision for his visa being canceled [sic] gets revoked for him to stay with us.
[52] G18, p.130.
Ms Talosia Tupu
Ms Tupu provided the following statement in support of the Applicant (dated

1 December 2022):[53]
My name is Talosia Tupu and I am the adopted mother of Mr Tupu. It is my great pleasure to write this letter in hopes to support the visa application of my son Poasa Tupu. I am currently an Australian citizen since 24th September 1997. I brought Poasa over from the islands in 2018 for a better life and future as I witnessed that they have very low income jobs in his country that wasn’t going to help provide for his family as his parents have high positions in church and villages.
Poasa’s biological parents are planning to move into Australia as they’re getting old and need the care that I absolutely believe Poasa can perform. It’ll be a letdown that he was separated from his parents to provide for them just to be sent back to no support or anyone/parents back in his countries of citizenships.
Poasa is a bright kid with a loveable personality. He is respectful and very dependable on doing what is needed. However, he is a great individual who had a weakness for alcohol and it saddens me that it led to him getting his visa cancelled. I know that he has made a few bad decisions and I strongly believe that he has learned from. It’ll be very heartbreaking if the decision was that he’d be taken away from me, family and the family that he has created.
It is my sincere hope that the decision is made with thoughtful consideration so that he can remain in the country to be with his family and become an improved individual in the community.
[53] G18, p.135.
Mr Michael Isaako
In a letter dated 27 November 2022, Mr Isaako said the following in support of the Applicant:[54]
I first met Poasa in Samoa a few years ago during a fire knife performance competition. I’ve recently just gotten in contact with him early this year and he became one of my closest friends I’ve ever had. I consider him as an older brother because we do everything together.
Poasa would always share his past and his mistakes with me and I’ve witnessed regret in his eyes when he speaks about it. I know he has made bad decisions and I know that he’s learning from it as seeing him go through his court cases prepared to serve time for his actions.
He is trying to be a better person, not only as a father but outside house doors. He is a hardworking person working 8 hours every day and I’m impressed. I’m a son of an abusive father but my father turned his life around and became the best father and made me the happiest son. Growing up as a child, it was common to see fathers lashing out at their families but it doesn’t make it right. Knowing that there are no bad person just bad decisions.
I believe that sometimes people can either learn from it or not. But in this case I believe Poasa has really proved that he didn’t need to serve time to show that he’s learnt from his mistakes. And as I quote a saying from my father once “If given the chance I want to prove that I’ve changed”.
[54] G18, p.129.
Mr Tauiai Taito
In a letter dated 29 November 2022, Mr Taito wrote the following:[55]
I am writing this reference letter for Poasa Tupu, whom I have known for 4 years as one of my closest guy mates. Although I understand and respect the decision of the court, I am writing this letter to support the revocation of Poasa Tupu.
Understanding that Poasa has had a few flaws and imperfections in the past, he’s not all flawless now because no one is perfect. But before the court finally made a decision 2 months ago about his case. I’ve seen big improvements from him. The thought of losing and not seeing his loved ones woke him up. He started changing for the better.
Poasa was always a bubbly person. He was the life of the party at most. I would never see him ill-tempered unless someone messed with his drunk self. I’m not defending or supporting his previous actions but I am supporting the new person we’ve witnessed him become. He’s shown a lot of remorse that he’s lost the two people who mattered the most to him.
Losing his family has really taken a torn on him. He used to smoking and drinking a lot but he’s really cut down both because he truly believes nothing good comes out of it.
He has shown us that he can be a better version of himself and we’d love to see more of it with regaining his visa back so he can prove not only to his loved ones but to the community of Australia.
[55] G18, p.132.
Ms Kristy Olcorn
Ms Olcorn supplied a character reference dated 28 November 2022 which stated:[56]
[56] G18, p.134.
…I am a long time family friend of Poasa.
I have known Poasa Tupu since he was 10 years old, he is now 24.
Poasa has worked his way from a small village in Western Samoa to Brisbane, Australia, it was a very long process to get to where he is today in Australia to be ripped off his visa status in the matter of a small amount of time.
Poasa works a full time job & a casual job to help provide for his family not only in Australia but also to his sister and sick parents in a third world country where having an income stream is very, very difficult.
Poasa has lived in my house for almost 4 years and in that time I have watched him learn English, gain a job in Australia, work hard, adapt to culture changes and try his best to settle into Australia.
I am Australian born & raised and I, myself have lived overseas before and know the struggles of trying to adapt to a new country with a huge culture shock and language barrier. Unless you have done it, it is not as easy as it sounds.
Poasa helps entertain through cultural exchanges in the Australian public by integrating his heritage through Samoan fire dances at weddings and birthdays.
Over the years I have watched Poasa make mistakes, but I have also watched him grow and correct himself. I think we can all agree that the decisions that have led Poasa to be in front of the court today were resulted from alcohol abuse, in which since the events, Poasa has eradicated alcohol out of his life several months before even being sentenced to jail.
Previous to being incarcerated Poasa had confided in me a few of his goals, at the top of his list was that he wanted to change himself & his life around for the better. Poasa made a pact to eliminate all alcohol and stuck to it right up until the moment he was sentenced and I had the honor of witnessing it.
It is with sincere hope that the court takes into reconsideration deportation as an option for Poasa. Despite the current case, I still believe that Poasa is a respectful & courteous person to the community and deserves a second chance.
Mr Chris Stevens

Mr Stevens, the Floor Manager at ‘DMP’, stated the following in support of the Applicant (dated 26 September 2022):[57]
I have known Poasa for approximately 3 years. I am currently his Floor Manager at [DMP], and I need to emphasis[e] how much Poasa is an asset to our company. Since beginning work here at [DMP], I have found Poasa to be extremely reliable and s always arriving on time. He works great autonomously without supervision but excels in a team environment where he positively influences his fellow co-workers which creates a strong team bond.
Poasa has never let us down and always works to his best ability. In the rare occasions where Poasa does make a mistake he shows that he learns from it and improves, with him never repeating the same mistake twice. Since I was first informed of Poasa’s court proceedings, I have noticed a general change in his demeaner and how he handles certain situations.
… [DMP] was told that he would put his best foot forward and stay out of trouble, while also doing his best to improve his behaviour outside of his work environment. No person is perfect; however, I have actively seen the positive chance that Poasa has done just that as we have seen ourselves the improvements that have been made. He will most certainly have a working position here at [DMP] for the foreseeable future.
It would be a tremendous loss to [DMP] should Poasa lose his bid to stay out or prison or lose his bid to stay in our country. In my opinion, Poasa is an outstanding individual who influences his peers for the better, who has a fantastic work ethic and is striving to always be a better person.
[57] G18, p.123.
Mr Kuresa Cartwright
Mr Cartwright offered the following words in support of his nephew:[58]
… I am the Uncle of Poasa Tupu, I currently live here in Brisbane Australia, I moved to Australia from New Zealand in 2010. I am writing this letter as a support person for my nephew Poasa Tupu. My relationship with Poasa Tupu has always been close, I am also a father and he was like another son to me, he would open up to me with his problems and I would advise him the best of my ability. I have known Poasa Tupu his whole life, I have been part of his upbringing, he is a very good man, although he has made very bad decisions due to being under the influence which does not excuse his actions but he is very remorseful and regrets every bad decisions he had made. I understand about his current situation and where he is currently held at the moment and when I was notified that he will be deported to New Zealand I was very concerned as we have absolutely no family nor friends there for him to go and stay. Our whole entire family have moved to Australia, we have all built a life here and have called Australia our home for the past few years. If there is anyway to reconsider for my nephew Poasa Tupu to stay in Australia will be highly requested as he has no family or friends in New Zealand. We as a family and as a[n] uncle will be very concerned for his wellbeing and his mental health if he was to live alone and have no place to go, which would lead him to go through depression as he has no family or friends to turn to if he goes through that situation. It is our sincere hope that you reconsider for my nephew Poasa Tupu to continue to reside here in Australia that would mean everything to our whole entire family.
[58] Applicant’s evidence A10, p.13.
Mr Christopher Togafau
Mr Togafau is the Band Leader for Voice of Christ Full Gospel church. In support of the Applicant, he wrote:[59]
Poasa is a close friend of mine and we’ve been close friends since he moved over from New Zealand. He too also serves in the band and he is very talented with music and his knowledge inside the music ministry.
Writing this letter, I am aware of the charges that have been brought upon Poasa and I hope it can be resolved peacefully and righteously. Poasa and I have been keeping in contact till this day, although he is upset and feels wrongly done. It’s a relief to hear that he is still in good spirits and keeping his faith strong. Keeping his mental state positive & his spirits high.
Poasa is a very committed man to his obligations in the church. He upholds high values and loves to keep the morale in our band ministry at its best. He has done a lot inside our band ministry. He is basically my right hand in the music ministry for our church. We discuss Fundraising, Charity work and he also helps with the morning breakfast drive for our church congregation. Making Tea & Coffees for the parents and elderly in our congregation. Poasa has been a great help and also a very trusted role model not only in the band ministry but also inside the church congregation.
I hope this letter may be of some help to see Poasa Tupu for who he really is, he is a God-fearing man, humble, vibrant and forgiving.
[59] Applicant’s evidence A12, p.61.
ISSUES
The issues for determination are:
(a)whether the Applicant meets the requirements of the character test as defined in section 501 (subparagraph 501CA(4)(b)(i)); and
(b)if he does not, whether there is another reason why the cancellation decision should be revoked (subparagraph 501CA(4)(b)(ii)).
LEGISLATIVE FRAMEWORK
Does the Applicant Pass the Character Test?
In September 2022, the Applicant was sentenced before the Magistrates Court of Queensland at Beenleigh to two terms of imprisonment of 12 months, for the offences of Assault occasioning bodily harm – domestic violence offence (October 2021); and Assault occasioning bodily harm (November 2021). As a consequence, the Tribunal can only find that the Applicant has a ‘substantial criminal record’, and the Applicant cannot pass the character test: s.501(7).
Consequently, the task for the Tribunal reduces to an exercise the discretion in s.501CA(4)(b)(ii), to consider whether there is now ‘another reason’ why the original visa cancellation decision under s.501(3A) should be revoked?
In considering whether to exercise the discretion, the Tribunal is bound to comply with any Directions made under the Act by virtue of s.499(2A). In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Ministerial Direction’) is applicable.
The Ministerial Direction outlines a framework for decision-makers with respect to exercising the discretion outlined in s.501CA of the Act. Relevantly, paragraph 6 of the Ministerial Directions provides:
6. Exercising discretion
Informed by the principles in paragraph 5.2 above, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
The principles contained within 5.2 of the Ministerial Direction are as follows:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Ministerial Direction sets out the five Primary Considerations that the Tribunal must take into account, being:
(1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’);
(2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’);
(3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’);
(4)the best interests of minor children in Australia (‘Primary Consideration 4’); and
(5)expectations of the Australian community (‘Primary Consideration 5’).
The Ministerial Direction then stipulates ‘Other Considerations’ which must also be taken into consideration:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Notably, these considerations are to be regarded as ‘other’, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:
...Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non-refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
The nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 of the Ministerial Direction sets out the factors to which decision-makers must have regard when considering the nature and seriousness of the Applicant’s criminal offending. The Respondent Minister now submits that the fact that the Applicant was sentenced to a term of custodial imprisonment must be viewed as a reflection of the objective seriousness of the offences committed by the Applicant (Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]). The Tribunal agrees.
In relation to the offence of assault occasioning bodily harm, as committed by the Applicant on 8 March 2020, the police facts – as presented to the court at the time of sentencing – indicate that the Applicant had approached his victim outside a nightclub and had then punched his victim in the face, four times. The police brief further states that, even after his arrest, the Applicant had continued to kick at a door, and indicates that the Applicant had remained verbally aggressive in his dealings with the police (SG2, p.13).
In relation to the Applicant’s conviction for assault occasioning bodily harm on

15 March 2020, the police brief of evidence presented to the Court at the time of sentencing indicates that the Applicant had been attending a birthday party at a hotel, and had merely walked past his seated victim, before punching the victim in the face, thus rendering that person unconscious for a period. After his arrest, the Applicant was asked by the police why he had done that, and they were told that the Applicant had punched his victim because the victim had been ‘talking shit throughout the party’ (SG2, p.17).
The Applicant’s offence of assaults occasioning bodily harm – domestic violence offences as committed on 30 October 2021, relate to the Applicant having assaulted his son, who was 14 months old at the time (G8, p.43). The police brief of evidence indicates that the Applicant and Ms Puepuemai had been having an argument about the continued presence of the Applicant’s friends in their home, who were over at their house and drinking with the Applicant at the time. Ms Puepuemai had happened to be holding their infant son D at the time of their having words about this. The Applicant raised his voice, thus causing D to cry. Then the Applicant proceeded to slap, and grab at D, thereby inflicting scratches to D’s head and arm (G8, p.43). The Applicant concedes that he was grossly intoxicated at the time.
The Applicant’s conviction for assault occasioning bodily harm for the offence which took place on 26 November 2021 involved the Applicant having punched his neighbour, a person whom was not even known to the Applicant at the time (G8, pp.44-45). The neighbour had heard yelling in the vicinity of the Applicant’s home, and had thus walked over to enquire whether everything was okay, whereupon the Applicant had proceeded to set upon and assault his neighbour. The sentencing Magistrate, His Honour Mr Kilner, described this offence is one that was ‘without provocation’ (G7, p.38).
On 22 January 2022, the Applicant committed the offences of common assault – domestic violence offence, and contravention of domestic violence order. The police brief of evidence indicates that the Applicant had pinched and slapped at his son D (then aged 17 months), who at the time was the subject of a temporary protection order (G8, p.40). The Applicant also threatened to choke D, whereupon Ms Puepuemai fled the premises in fear with D

(G8, pp.41-42). It was this incident that resulted in the convening of the cultural meeting between the Applicant’s family and Ms Puepuemai’s family.
The Applicant’s conviction for breach of bail conditions on 22 January 2022, relates to the Applicant breaching a condition which required that the Applicant not contact or approach Ms Puepuemai, or D (SG6, pp.26-27; S20, p.71).
The Respondent Minister now submits[60] that, although the Applicant’s first two assault offences did not result in sentences of imprisonment, these were nonetheless still violent offences, and must now be regarded by the Tribunal as ‘very serious’ on that basis (paragraph 8.1.1 (1)(a)(i) of the Ministerial Direction).
[60] SFIC, paragraph 34.
The Respondent Minister further observes[61] that the convictions for breaching a bail condition, and contravention of a domestic violence order, also resulted in sentences of imprisonment. Both of these offences occurred on the same day as when the Applicant had assaulted his son, D. The Respondent Minister now contends that, in light of paragraph 8.1.1(1)(a) & (c) of the Ministerial Direction, these offences should be regarded as ‘very serious’ as both led to sentences of imprisonment, and related to the Applicant’s assault on his son. The Respondent Minister further observes[62] that the Applicant’s convictions for assault against D constitute ‘family violence’ offences, for which the Applicant was sentenced to a term of imprisonment.
[61] SFIC, paragraph 35.
[62] SFIC, paragraph 36.
Overall, the Respondent Minister contends[63] that the Applicant’s criminal and traffic history must now be viewed as ‘very serious’.
[63] SFIC, paragraph 39.
Prior to the hearing of this matter in the Tribunal, the Applicant was represented by Samuta McComber Lawyers, who had prepared written submissions on behalf the Applicant (dated 25 February 2023) as part of the Applicant’s initial request for revocation of the mandatory visa cancellation. These submissions had been initially prepared to address the decision criteria under the former Ministerial Direction (Number 90), yet Samuta McComber Lawyers also prepared Addendum submissions (dated 21 April 2023) after the Department of Home Affairs had invited supplementary submissions in response to the promulgation of the current Ministerial Direction, Number 99. Both sets of submissions have been taken into consideration by the Tribunal, noting that by the time of the hearing of the application for review that the Applicant was self-represented.
The Applicant’s former lawyers submitted that, aside from the offences for which the Applicant was imprisoned, he had an ‘insubstantial’[64] criminal history. Although it was conceded that the Applicant’s conduct was of a violent nature such that it should now be viewed ‘very seriously’,[65] it was also submitted that the structure of the sentence handed down by his Honour Magistrate Kilner on 27 September 2022 should also be taken into consideration, by reason of it revealing two discrete aspects. Firstly, a head sentence of

12 months imprisonment for each assault occasioning bodily harm – in order to reflect the overall seriousness of the offending, and the nature as domestic violence offences; yet secondly, the fact of a court-ordered parole release date of 24 November 2022 (only approximately two months into that head sentence); thus indicating that the sentencing Magistrate had determined that the Applicant should only be required to serve less than 17% of his full term, and that ‘this indicates that his Honour considered our client’s mitigating circumstances to have heavy weight relative to his offending. Where these mitigating circumstances weighed heavily on the sentencing Magistrate, we submit that they should similarly mitigate any determination of seriousness when considering paragraph 8.1.1(1)(c) of Direction No. 90’.[66]
[64] G14, p.77, paragraph 47.
[65] G14, p.77, paragraph 49.
[66] G14, p.78, paragraph 52.
Risk to the Australian community
When assessing the risk of harm to the Australian community that may now be posed by the Applicant, a decision-maker must have regard to, cumulatively, the following relevant matters arising under paragraph 8.1.2(2) of the Ministerial direction:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen reoffending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

The Tribunal does consider that, given that the Applicant is still a young man who grew up in circumstances of poverty and severely limited opportunities in Samoa, and who had arrived in Australia when aged about 19, such that effectively one quarter of his entire life has now been spent living in Australia has the consequence that, for purposes of paragraph 8.3(4) in the Ministerial Direction, the Applicant has been a resident in Australia ‘during and since his formative years’, such that considerable weight is now required to be attributed to this fact under the Ministerial Direction. In addition, the evidence going to the strength and nature of the Applicant’s ties to the Australian community is particularly strong in this case. The Tribunal considers therefore that very significant weight in favour of revocation of the visa cancellation decision must now attach because of this Primary Consideration.
PRIMARY CONSIDERATION FOUR – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA.
In accordance with paragraph 8.4 of the Ministerial Direction, decision-makers must make a determination about whether non-revocation is, or is not, in the best interests of minor child affected by the decision. Paragraph 8.4 (4) of the Ministerial Direction provides that when having regard to this consideration, a number of factors must be considered:
(a)the nature and duration of the relationship;
(b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18;
(c)the impact of the Applicant’s prior conduct, and whether it has or will have a negative impact on the child;
(d)the likely effect of separation and the ability to maintain contact; and
(e)whether there are other persons who already fulfil a parental role in relation to the child.
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Minister submits (SFIC, para 62) that the Applicant has been convicted of assaulting his son D on two occasions, which is conduct that ‘undoubtedly’ has had a negative impact on D. And that the Applicant is now subject to a protection order which limits the contact he may have with D until March 2027, and that the Applicant has been in custody (either prison or immigration detention), since 29 September 2022 (SG35, p.119), such that the frequency of the Applicant’s contact with his son has been limited, and will now remain so for a significant period of time. The Respondent Minister also submits that in the event that the Applicant were to be deported and removed to New Zealand, then he could still continue to maintain contact with D by means of telephone and video calls with D ‘such that there would be no material change to the Applicant’s current relationship with his son’. As such, the Respondent Minister contends that the best interests of D should attract ‘no more than nominal weight in favour of revocation’.[81]
[81] SFIC, p.10, paragraph 62.
The Applicant has also specified to have two minor nephews, aged nine and 16 years whom would also be affected if he were to be deported (G17, p.120). The Respondent Minister submits (SFIC, para 63) that there is no evidence going to the nature and duration of the Applicant’s relationship with his two nephews; and that the Applicant does not have a parental relationship with these boys in any event, and, in the case of the Applicant’s

16 year old nephew, he is approaching adulthood. The Respondent Minister contends that ‘little if any weight [should] be attributed to the best interests of the Applicant’s nephews’.
The Applicant submits that his relationship with his son D is parental, and the Applicant has been heavily involved in D’s life since birth and that: [82]
[82] G14, p.83-85, paragraphs 86-103.
…This is not a case where the father has been absent from the child’s life due to regular offending or imprisonment. This is a case where the father has played an active role in the child’s life, including personal care and financial provision.
We submit that our client was a full-time father, living with [D] and supporting him every day, between August 2020 and October 2020 one. That is a total of fourteen (14) months – notably, the first fourteen months of [D]’s life. We submit that our client was a fully-involved father for this critical early period of his son’s life.
…
... It is submitted that our client is likely to play a positive parental role in his son’s life for a significant period of time. As [D] is currently two years old, we submit that our client is likely to play a role in his life another fifteen to sixteen years until he reaches the age of majority.
…..
…It is submitted that [D] will suffer significantly if he is separated from his father. In particular, it is submitted that our client will be unable to assist the with his eczema in the hands-on way he has done so previously, and that this will be detrimental to [D]’s long-term health.
….
As noted in Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, [[2021] AATA 1826, [80] – [81]], particularly in a case where the relationship between the parents breaks down, it is important that the children have the physical presence of both parents in their lives. Although at this stage our client hopes to repair his relationship with Ms Puepuemai, we nonetheless submit that it is important that [D] maintain contact with his father in whatever circumstances eventuate with respect to his care.
…
In the premises it is submitted that significant weight in favour of revocation of the cancellation of the Applicant’s visa should be applied because of the best interests of [D].
The Tribunal accepts the submissions made on behalf the Applicant, and considers that the positive impact that the Applicant has had (and will in future have) for D outweighs any negative impact upon D arising because of the offences for which the Applicant has been convicted. The Tribunal determines that very significant weight in support of a decision to revoke the visa cancellation decision must attach, because of the best interests of the Applicant’s infant son D. Some further (albeit only quite limited) additional weight in favour of revocation also attaches to this consideration because of the interests of the Applicant’s nephews.
PRIMARY CONSIDERATION FIVE – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) and (2) of the Ministerial Direction outlines the Australian community’s expectations, stipulating that the Australian community expects non-citizens to obey Australian laws while in Australia, and that the Australian community expects the government to not allow individuals to remain in Australia where they have engaged in serious conduct in breach of this expectation. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government to not allow such a non-citizen to enter and remain in Australia (paragraph 8.5(1)).
Paragraph 8.5(3) of the Ministerial Direction states that these expectations apply irrespective of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Decision-makers should proceed on the basis of the government’s views, as now outlined in paragraph 8.5 of the Ministerial Direction, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to the Applicant circumstances, or evidence about those expectations. Rather, the Tribunal must regard paragraph 8.5 the Ministerial Direction as if it were a deeming provision: FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104], per Stewart J; and Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68.
The Respondent Minister submits that the Applicant’s ‘very serious’ criminal offending, including family violence offences, breaches the deemed expectations of the Australian community, and, in conjunction with the limited period of time within which the Applicant has resided in Australia is consistent with the view that the Applicant should not be allowed to enter and remain in Australia, because of paragraph 8.5(1) in the Ministerial Direction (SFIC, para 68), such that the Minister submits that ‘very significant’ weight should be attached to this consideration by the Tribunal against revocation of the visa cancellation decision.
In the submission prepared by the Applicant’s former solicitors it is conceded that the Applicant has ‘undoubtedly’[83] breached the expectations of the Australian community, yet observes that the question is whether there are any factors which modify the imputed expectation of the Australian community, and this question is one that is to be informed by the principles in paragraphs 5.2(4) and (5) the Ministerial Direction, which provide:
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
[83] G14, p.85, paragraph 107.
The expression ‘limited stay visa’, as used in paragraph 5.2(4) of the Ministerial Direction is not defined in the Act. Although the Applicant held a ‘temporary’ category of visa it was of a kind that still permits an indefinite stay in Australia, such that it is now submitted[84] by the Applicant’s former solicitors that the ‘lower tolerance’ ordinarily referred to in paragraph 5.2(4) of the Ministerial direction should not apply to the Applicant. Further, it is submitted that the Applicant has lived in Australia since March 2018, and that the Applicant has held

full-time employment for the entirety of his residency in Australia, and that the Applicant’s participation in the Australian community should not be categorised as ‘short’ such that the tolerance of the Australian community should not be regarded as having lowered under paragraph 5.2(4) of the Ministerial Direction because the Applicant came to Australia as a relatively young man and has spent a proportion of his formative years in this country;[85] such that a higher level of tolerance for the Applicant’s conduct should be extended, because of paragraph 5.2(5) of the Ministerial Direction.
[84] G14, p.86, paragraph 110.
[85] G14, p.86, paragraphs 111-112.
Ultimately however, the Applicant’s former solicitors still concede that this consideration does weigh against revocation of the visa cancellation decision.
The Tribunal considers that Primary Consideration Five does weigh against revocation of the visa cancellation decision, yet for the reasons now submitted by the Applicant’s former solicitors the weight that would otherwise attach to this consideration is ameliorated, reducing to ‘heavy’ weight in favour of non-revocation.
OTHER CONSIDERATIONS
It is necessary to look at the ‘Other Considerations’ listed at paragraph 9 of the Direction. The Tribunal will now consider each of the four stipulated sub-paragraphs

(a), (b), (c) and (d).
(a) Legal consequences of the decision
Under paragraph 9.1 of the Ministerial Direction decision-makers are required to be mindful of Australia’s non-refoulement obligations. In the current case non-refoulement does not arise as an issue requiring consideration. In these circumstances this consideration weighs neutrally.
(b) Extent of impediments, if removed
Pursuant to paragraph 9.2 of the Ministerial Direction, decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, when establishing themselves and maintaining basic living standards (in terms of what is generally available to other citizens of that country), taking into account the non-citizen’s age and health; whether there are substantial language or cultural barriers and any social, medical and/or economic support that will be available to them.
The Respondent Minister submits (SFIC, paras 71-75) that, the Applicant has no family in New Zealand, and has never been to New Zealand (G17, p.121), and has stated that he is worried that if he were to be deported to New Zealand he would become suicidal, and would struggle without any family in that country (G17, p.121). Despite this, the Respondent Minister observes that the Applicant is a young man, with work experience as a roofer/roof flasher, who is a New Zealand citizen, and who will have access to levels of health care and welfare in New Zealand that are commensurate with those that are available for all other New Zealand citizens. The Applicant has also stated that he has a ‘good’ relationship with his biological parents in Samoa, with whom he has remained in contact (G17, p.121); as well as with other relatives in Samoa, in circumstances wherein the Applicant has spent most of his life in Samoa. In these circumstances the Minister contends that, if returned to either New Zealand or to Samoa, the Applicant would be able to maintain basic living standards; would not face any cultural or language barriers; and is still young enough and in good health and has access to significant familial support in Samoa, such that ‘very limited’ weight should now be attributed to this consideration in favour of revocation of the mandatory visa cancellation decision. The Tribunal finds this boiler-plate submission to be quite unpersuasive and assesses it as insufficiently engaged with the specific circumstances that must be considered by the Tribunal as part of the deliberation required under this consideration.
The Applicant has stated:[86]
[86] G17, p.121.
I do not have any family whatsoever in New Zealand. The vast majority of my family members live in Australia, including most of my more distant family (my aunties and uncles). My biological parents live in Samoa.
I have also never been to New Zealand before, so I have no resources at my disposal to help me. I don’t have anyone to help me find a job either.
I would feel absolutely lost. I would have no son, no partner, no car, and no house. I expect that I would be homeless.
I have spent a lot of time in jail and immigration detention thinking about my actions, and what is important in my life, and I have realised that without my family, I will feel like I have nothing. I miss my son every day.
I am worried that, if I were deported to New Zealand, I would be suicidal. In my religion, it is very bad to do this. But I am worried that I will struggle so hard without any family. I would wonder, what is the point of being on this planet if not for my family.
If I were deported to New Zealand, I also have no idea what impact that would have on my family in Australia. I know they would all be devastated.
I have good work here, and my family are here. My family is extremely important to me. I want to be able to raise my son and help take care of him.
…
If I was forced to return to Samoa, my biological parents would not be able to support me. They do not have enough money, and I could not get a job myself to support them there. Back in Samoa, on the farm, it is hard to make money and takes a long time.
We had a hard life in Samoa and I would feel like I have let my parents down if I had to return there and was unable to continue providing for them from Australia.
The Tribunal accepts the Applicant’s submission and considers that the extent of the impediments that the Applicant would be likely to face in New Zealand would be quite significant. The Tribunal concludes therefore that ‘moderately heavy’ weight in favour of revocation of the visa cancellation decision should now attach, because of this consideration.
(c) Impact on victims
Under paragraph 9.3 of the Ministerial Direction, decision-makers must consider the impact of the decision on members of the Australian community, including victims of the
non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available.
By way of its Statement of Facts Issues and Contentions, the Respondent Minister initially made no submissions in response to this Other Consideration, however the Tribunal invited the Respondent Minister to further consider the matter, in light of the fact that both the Applicant’s partner Ms Puepuemai and his infant son D were direct victims of the Applicant’s family violence conduct, and in circumstances wherein during the Tribunal hearing,
Ms Puepuemai had expressed very clear views on her own behalf – and further on behalf her infant son D – that they wished to see the revocation of the mandatory visa cancellation decision. In the post-hearing supplementary submissions dated 30 August 2023 and in relation to this issue the Respondent Minister then submitted:[87]
While the Applicant’s partner and their son (through the Applicant’s partner) have expressed that they want the Applicant to remain in Australia, the impact upon them as victims of the Applicant would be adverse were the Applicant to remain in Australia and engage in further family violence against them. It is also relevant that if the Applicant is removed from Australia, this would protect the Applicant’s partner and son from being subject to further family violence by the Applicant. In Manebona at [133] - [134] Logan, Rangia, and Goodman JJ rejected the proposition that this consideration only concerned the impact of a perpetrator [Applicant] remaining in Australia, and not also the impact of the perpetrator being removed from Australia.
…
The Tribunal is not required to give weight to the wishes of the Applicant’s partner and son under this consideration, in addition to the other relevant considerations which have been outlined: XXBN at [53]. For the purpose of this consideration (paragraph 9.3 of direction 99) and for the reasons set out above, the Minister contends that this consideration should be attributed neutral (no) weight, having regard to the competing factors which comprise both favourable and adverse impacts on the Applicant’s partner and son as victims of the Applicant, whether the Applicant remains in Australia or returns to New Zealand.
[87] Respondent’s closing submissions dated 30 August 2023, paragraphs 18-20.
That submission is not accepted by the Tribunal. Already the Tribunal has determined that the risk of the Applicant engaging in further acts of family violence is now an acceptably low risk. There is then direct information before the Tribunal that the victims of the Applicant’s acts of family violence now expressly wish for the Applicant to remain in Australia, and would consider themselves as adversely impacted by non-revocation of the visa cancellation decision. In all the circumstances, a heavy measure of weight should attach to this consideration in favour of revocation of the visa cancellation decision.
(d) impact on Australian business interests

In consideration of this Other Consideration, paragraph 9.4 of the Ministerial Direction requires that decision-makers must have regard to any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia.
The Respondent Minister observes that the Applicant had previously submitted that this consideration is not relevant in his circumstances (G14, p.90). Despite that, the Respondent Minister notes there to be a letter dated 26 September 2022 from a Mr Chris Stevens, the Applicant’s former employer at Delta Metal Products, which states in part that it would be a ‘tremendous loss’ to the business if the Applicant were to be deported (G18, p.123). In response, the Respondent Minister submits (SFIC, para 79) that the Applicant has not been in the community for 11 months, and there is no evidence as to the Applicant’s role at Delta Metal Products beyond Mr Stevens now stating that the Applicant is a very good employee. The Respondent Minister submits that in Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [68]-[71] it is made clear that paragraph 9.4 of the Ministerial Direction requires that the Tribunal consider ‘any’ impact on Australian business interests, such that the Minister concedes that some, albeit minimal weight should now be attributed to this consideration in favour of revocation of the mandatory visa cancellation decision.
The Tribunal considers that a small further measure of weight in favour of revocation of the visa cancellation decision attaches, because of this consideration.
CONCLUSION
In summary the Tribunal concludes as follows regarding each of the Primary and Other considerations:
(1)protection of the Australian community from criminal or other serious conduct (‘Primary Consideration 1’) – heavy weight in favour of non-revocation;
(2)whether the conduct engaged in constituted family violence (‘Primary Consideration 2’) – no additional adverse weight;
(3)the strength, nature and duration of ties to Australia (‘Primary Consideration 3’) – very significant weight in favour of revocation of the visa decision;
(4)the best interests of minor children in Australia (‘Primary Consideration 4’) – very significant weight in support of revocation of the visa decision; and
(5)expectations of the Australian community (‘Primary Consideration 5’) – heavy weight in favour of non-revocation.
(6)legal consequences of the decision – neutral weight;
(7)extent of impediments if removed – moderately heavy weight in favour of revocation of the visa cancellation decision;
(8)impact on victims – heavy weight in favour of revocation of the visa cancellation decision; and
(9)impact on Australian business interests – small measure of weight in favour of revocation of the visa cancellation decision.
DECISION
The Tribunal sets aside the decision not to revoke the mandatory cancellation of the Applicant’s visa, and now substitutes a decision to revoke the visa cancellation.

I certify that the preceding 143 (one hundred and forty-three) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

...........................[SGD]...........................
Associate

Dated: 27 September 2023

Date(s) of hearing: 22-23 August 2023

Date final submissions received: 1 September 2023

Applicant: In person

Advocate for the Respondent: Mr Max Hopkins

Solicitors for the Respondent: MinterEllison
ANNEXURE A

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

1

G-Documents

R

-

3 July 2023

2

Amended Supplementary G-Documents

R

-

17 August 2023

3

Respondent’s Statement of Facts, Issues and Contentions

R

7 August 2023

7 August 2023

4

Applicant’s Compiled Evidence

A

-

-

[2023] AATA 3508

7 September 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Court	Date	Offence	Sentence & conviction
Brisbane Magistrates Court	26 March, 2020	Assaults occasioning bodily harm	No conviction recorded 12 months’ probation
Beenleigh Magistrates Court	30 July, 2021	Assaults occasioning bodily harm	No conviction recorded
Beenleigh Magistrates Court	27 September, 2022	breach of bail condition	one month imprisonment
		common assault – domestic violence	three months’ imprisonment
		contravention of domestic violence order	three months’ imprisonment
		assaults occasioning bodily harm	twelve months’ imprisonment ordered to pay $200 in compensation
		assaults occasioning bodily harm – domestic violence offence	twelve months’ imprisonment.

Date(s) of hearing:	22-23 August 2023
Date final submissions received:	1 September 2023
Applicant:	In person
Advocate for the Respondent:	Mr Max Hopkins
Solicitors for the Respondent:	MinterEllison

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
1	G-Documents	R	-	3 July 2023
2	Amended Supplementary G-Documents	R	-	17 August 2023
3	Respondent’s Statement of Facts, Issues and Contentions	R	7 August 2023	7 August 2023
4	Applicant’s Compiled Evidence	A	-	-