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

Waqavakatoga and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 264 (26 February 2024)
Division:GENERAL DIVISION
File Number:2023/9493
Re:WAQAVAKATOGA, Lepani Matevakaloloma
APPLICANT

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

DECISION
Tribunal:Senior Member Hon. J Rau SC
Date:26 February 2024
Place:Adelaide

The decision under review is affirmed.
.............................[sgnd]........................................
Senior Member Hon. J Rau SC
CATCHWORDS
MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Resident Return visa under section 501(3A)- where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth)
Children (Criminal Proceedings) Act 1987 ( NSW).
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
Jones v Dunkel (1959) 101 CLR 320
Minister for Immigration, Citizenship, Migrant Services and Multicultural affairs v Thornton (2023) HCA 17
SECONDARY MATERIAL
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
REASONS FOR DECISION
Senior Member Hon. J Rau SC
26 February 2024
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) on 6 December 2023, not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return visa (“the Visa”). The visa was cancelled on 15 March 2023 under section 501(3A) on the basis that he did not pass the character test.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction on 9 April 2013 in the District Court of NSW of aggravated break, enter and steal, with the circumstances of aggravation being in company. He was sentenced to a term of 2 years imprisonment.[1]
[1] Exhibit 3, G-Documents: Attachment A: National Criminal History Check (dated 22 August 2023), 44.
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.
The hearing was held on 19 February 2024. The Applicant was represented by Miss Suzette Pereira of Brydens Lawyers and the Respondent was represented by Miss Grace Mickle of Minter Ellison.
The Applicant gave evidence by way of Microsoft Teams from Yongha Hill Detention Centre. The technology failed to provide an image of the Applicant, to the Tribunal at least, for most of the hearing. It would have assisted the Tribunal in assessing the Applicant’s demeanour if the video link was available. The audio was however clear. This enabled the Tribunal to adequately assess the Applicant’s evidence.
The Applicant was a poor historian. He was often cagey in giving answers. He frequently misinterpreted questions when the provision of a direct answer may not have assisted him. He appeared to have a basic comprehension of the factors to be taken into consideration by the Tribunal, in the application of Direction 99. His evidence was seemingly crafted to fit his understanding of the direction, with little regard for the truth. There were many examples of this. I set some out below.
The Applicant claimed to have no remaining family connections in Fiji. He remarked “ I have nothing at home...no network”. This unguarded remark is to be contrasted with his statements that he considered Australia to be his home.
Under direct questioning, the Applicant revealed that his mother, to whom he claims to be very close, has two brother and two sisters in Fiji. He acknowledged that they had children, but he claimed not to know how many. He said that this apparent lack of knowledge about his mother’s siblings and their families, was because he was always closer to his father’s family. His father died in 2008. He was asked about his father’s family. He revealed, under direct questioning, that his father had an older brother, but he didn’t know where he lived. He then corrected himself to say that he lived in Suva, he just didn’t know what suburb. He said that his paternal uncle had no children. Again, under direct questioning, he revealed that his father also had a younger sister who lives in Suva with her partner and her one child. Also under direct questioning, he revealed that his father’s aunt, with whom he had lived in Fiji for 7 months between July 2003 and February 2004, was also still alive. He also revealed that he had been sent back to Fiji by his mother, to get him away from criminal elements. This occurred between December 2007 and August 2008. Again, he lived with relatives.
The Applicant claimed to be very close to his partner of some 5 years, C.B. He said that they would have married last October but for his incarceration. She is financially and emotionally dependent upon him and would be devastated if he were not to remain in Australia. She has two sons, Child A aged 17 and Child B aged 14. He claims to be very close to them. He told the Tribunal that “I love them like my own”.
The Applicant’s counsel did not call C.B as a witness, although the Applicant claimed she knew that hearing was on, and that she was ready to take a call at any time. He also added that “she is not required…I’m the one that’s required ”.
C.B did purportedly provide an unsigned and undated statement.[2] This statement itself is full of hearsay and is also grossly misleading, at least by omission. For example, it omits any mention of an AVO taken out against the Applicant for her protection, or the circumstances leading up to its making. It also presents a grossly misleading picture of the Applicant’s connection to C.B’s sons. The Applicant’s failure to call C.B had denied the Tribunal the opportunity of obtaining independent evidence regarding several important matters. These include evidence relevant to Primary Consideration 1 (especially regarding his violent offending), Primary Consideration 2, Primary Consideration 3 (especially regarding family violence in connection to C.B and his relationship with her children), Primary Consideration 4 and Primary Consideration 5.
[2] Exhibit 5, Ms C. B’s Letter (undated).
In these circumstances, it is open to the Tribunal to draw an inference that if C.B had been called, her evidence would not have assisted the Applicant’s case. I draw that inference.[3]
[3] Jones v Dunkel (1959) 101 CLR 320.
The true situation with C.B and her sons is very different to that set out in her statement,[4] the Applicant’s statement[5] and his evidence in chief. This additional evidence had to be extracted from the Applicant by way of direct questioning.
[4] Exhibit 5, Ms C. B’s Letter (undated).
[5] Exhibit 4, Mr Waqavakatoga’s Statement (dated 26 January 2024).
In response to questions, the Applicant revealed that Child A and Child B did not live with C.B. They had not done so at any time since the Applicant’s relationship with C.B began. There are court orders giving custody of the boys to their biological father. C.B is only permitted to see the boys for one hour per fortnight. This contact is supervised by an independent third party at neutral premises. The Applicant refused to enlighten the Tribunal on why this was so, stating that the reason for such restricted access was C.B’s private business. The Applicant said that he had sometimes dropped C.B off at these periods of supervised contact on his way to work. The Applicant has no independent relationship with the boys outside of his connection, whatever that may still be, with C.B. These facts are hard to reconcile with C.B’s statement that if the Applicant were to be deported: “our lives will be ruined and I’m worried about what a negative result could do to myself, sons…”.[6] It is also hard to reconcile with the Applicant’s claim to “love them like my own”.
[6] Exhibit 5, Ms C. B’s Letter (undated).
Given that the Applicant’s connection to Child A and Child B is only through C.B, and given her own tenuous connection with them, the Applicant’s evidence about this apparently deep connection, lacks credibility.
There is a current AVO against the Applicant for the protection of C.B. Unfortunately, no copy of the AVO or any other supporting material was provided to the Tribunal by either party. The Tribunal was reliant on the Applicant for the little detail that was available.
The Applicant said that the AVO was taken out in 2022 and that it expires in November 2024. He denied that there was any physical altercation. He told the Tribunal that there was “just an argument that went wrong……I gave her a little push back….I was given a two-year suspended sentence.”
The Applicant said that it was C.B who called the police, but that the AVO was taken out on their initiative, not hers. He said that the AVO still allows him to live with C.B but says that he “can’t break her belongings”. He denied having broken her belongings in the past and could not explain why such a seemingly random condition, should be the only one attaching to the AVO.
I do not accept that the Applicant was truthful in his evidence to the Tribunal about the trivial circumstances leading up to the AVO. The fact that C.B, who had apparently been the Applicant’s domestic partner for some 5 years, called the police suggests more than “just an argument”. The notion that the Applicant would be given a 2-year suspended sentence for “just an argument” is not credible. The notion that the AVO would only prohibit destruction of C.B’s belongings without any antecedent reason is not credible. The fact that C.B was not called, leads to a strong inference that her evidence would not have helped the Applicant.
I also note that the Applicant’s criminal history includes various convictions for dishonesty offences. An ACIC report generated on 22 August 2023 notes that he has used at least 5 aliases.[7]
[7] Exhibit 3, G-Document, Attachment A, 39.
The Applicant also sought to deflect blame for his offending onto others.
Overall, the Applicant was an unreliable witness. He sought to tailor his evidence to suit his cause.
Background Facts
The Applicant was born in Suva, Fiji on 4 February 1988. He is now 36 years of age.
The Applicant first came to Australia on 4 October 1999 when he was aged 11. There followed several return visits to Fiji of varying lengths of time. Altogether, the Applicant spent approximately 40 months in Fiji between 1999 and February 2017.
The Applicant says that he was exposed to family violence as a child. He left home as a 14-year-old boy, to live with a friend. He says that he had a poor relationship with his stepfather. He accepts that he associated with the “wrong type of people”. He began using drugs and alcohol.[8]
[8] Exhibit 4, Mr Waqavakatoga’s Statement (dated 26.01.2024) at [1] – [12].
The Applicant’s statement contained in his request for revocation dated 15 March 2023 that “I grew up here in Australia since the age of 9 years old” is manifestly untrue.[9] He later changed this to 11 years old.[10] In his evidence to the Tribunal, he again claimed that he came here when he was 9 years old.
[9] Exhibit 3, G-Documents, Attachment F: Revocation Request (dated 15.03.2023), 108.
[10] Exhibit 4, Mr Waqavakatoga’s Statement (dated 26.01.2024) at [16].
The Applicant sought to minimise or gloss over the considerable periods of time that he has spent in Fiji since 1999. This is consistent with his claims to feeling that Australia is his home and denying or trivialising his ongoing connections to Fiji.
On 19 December 2000, the Applicant returned to Fiji.[11]
[11] Ibid Attachment R: Movement Records, 160.
On 3 February 2001, the Applicant returned to Australia.[12]
[12] Ibid.
On 29 November 2001, the Applicant returned to Fiji.[13] He lived with his maternal grandmother in this period. She died in 2017.
[13] Exhibit 3, G-Documents, Attachment R: Movement Records, 160
On 13 December 2002, the Applicant returned to Australia.[14]
[14] Ibid.
The Applicant attended school up to year 10 in Sydney, but he did not complete that year.[15]
[15] Ibid Attachment C: Proceedings on Sentence, 70.
On 18 July 2003, the Applicant returned to Fiji.[16] He lived with his father’s aunt in this period. She is still alive and living in Fiji.
[16] Ibid Attachment R: Movement Records, 160.
On 4 February 2004, the Applicant turned 16.
On 20 February 2004, the Applicant returned to Australia.[17]
[17] Ibid.
The Applicant’s extensive criminal history in Australia began as a minor. I have considered the recent authorities on the use to which juvenile convictions may be put in the context of these proceedings.[18]
[18] Minister for Immigration, Citizenship, Migrant Services and Multicultural affairs v Thornton (2023) HCA 17.
It is necessary to consider the relevant State legislation in this case, that is ss 14 and 33 of the Children (Criminal Proceedings) Act 1987 (NSW). Section 33 provides as follows:
(1) If the Children's Court finds a person guilty of an offence to which this Division applies, it shall do one of the following things—
(a) it may make an order—
(i) directing that the charge be dismissed (in which case the Court may also, if it thinks fit, administer a caution to the person), or
(ii) discharging the person on condition that the person enters into a good behaviour bond for such period of time, not exceeding 2 years, as it thinks fit,
(b) it may make an order directing the person to enter into a good behaviour bond for a specified period, not exceeding 2 years,
(c) it may make an order imposing on the person a fine, not exceeding—
(i) the maximum fine prescribed by law in respect of the offence, or
(ii) 10 penalty units,
whichever is the lesser,
(c1) it may make an order releasing the person on condition that the person complies with an outcome plan determined at a conference held under the Young Offenders Act 1997 ,
(c2) it may make an order adjourning proceedings against the person to a specified date (not later than 12 months from the date of the finding of guilt) for any of the following purposes (but only if bail for the offence is or has been granted or dispensed with under the Bail Act 2013 )—
(i) for the purpose of assessing the person's capacity and prospects for rehabilitation,
(ii) for the purpose of allowing the person to demonstrate that rehabilitation has taken place,
(iii) for any other purpose the Children's Court considers appropriate in the circumstances,
(d) it may do both of the things referred to in paragraphs (b) and (c),
(e) it may make an order releasing the person on probation, on such conditions as it may determine, for such period of time, not exceeding 2 years, as it thinks fit,
(e1) it may do both the things referred to in paragraphs (c) and (e),
(f) it may, subject to the provisions of the Children (Community Service Orders) Act 1987 , make an order under section 5 of that Act requiring the person to perform community service work,
(f1) it may do both of the things referred to in paragraphs (e) and (f),
(g) it may, subject to the provisions of the Crimes (Sentencing Procedure) Act 1999 , make an order committing the person for such period of time (not exceeding 2 years) as it thinks fit—
(i) in the case of a person who is under the age of 21 years, to the control of the Minister administering the Children (Detention Centres) Act 1987 , or
(ii) in the case of a person who is of or above the age of 21 years, to the control of the Minister administering the Crimes (Administration of Sentences) Act 1999 .
(1A) A good behaviour bond imposed under this section—
(a) must contain a condition to the effect that the person to whom the bond relates
(the "person under bond" ) will appear before the court if called on to do so at any time during the term of the bond, and
(b) must contain a condition to the effect that, during the term of the bond, the person under bond will be of good behaviour, and
(c) may contain such other conditions as are specified in the order by which the bond is imposed, other than conditions requiring the person under bond-
(i) to perform community service work, or
(ii) to make any payment, whether in the nature of a fine, compensation or otherwise.
(1AA) Before making an order imposing a fine on a child, the Children's Court is to consider the age of the child and the following matters, where information is available in relation to those matters—
(a) the child's ability to pay the fine,
(b) the potential impact of the fine on the rehabilitation of the child.
(1B) If the Children's Court deals with a person under subsection (1) (g), it may make an order—
(a) suspending the execution of its order under subsection (1) (g) for a specified period (not exceeding the term of that order), and
(b) releasing the person on condition that the person enters into a good behaviour bond under subsection (1) (b) for such a specified period, but only if the person is not subject to any other order under subsection (1) (g) or to any sentence of imprisonment. Part 4 of the Crimes (Sentencing Procedure) Act 1999 does not apply to an order under subsection (1) (g) whose execution is suspended under this subsection.
(1C) If the Children's Court makes an order under subsection (1)(g)(ii) committing a person to the control of the Minister administering the Crimes (Administration of Sentences) Act 1999 , the period for which the person is committed is taken to be a sentence of imprisonment for the purposes of that Act.
(2) The Children's Court shall not deal with a person under subsection (1) (g) unless it is satisfied that it would be wholly inappropriate to deal with the person under subsection (1) (a)-(f1).
(3) In deciding under which paragraph of subsection (1) it should deal with a person who is a child, the Children's Court shall not have regard to the question of whether the child is a child in need of care and protection under the Children and Young Persons (Care and Protection) Act 1998 .
(4) Notwithstanding any other Act or law to the contrary, the Children's Court shall not sentence a person to imprisonment.
(4A) Subsection (4) is subject to section 28B of the Children (Detention Centres) Act 1987 but is not subject to any other provision of that Act.
(5) Nothing in this section limits or affects any power that the Children's Court may have apart from this section—
(a) to impose any disqualification under the road transport legislation on a person whom it has found guilty of an offence,
(b) to order the forfeiture of any property that relates to the commission of an offence of which it has found a person guilty, or
(c) to make an order for restitution of property under section 43 of the Criminal Procedure Act 1986 , or
(d) to make a community clean up order in respect of a fine imposed for an offence under the Graffiti Control Act 2008 .
(6) For the purposes of any provision of the road transport legislation that confers power on a court with respect to a person who has been convicted of an offence, a finding of guilt by the Children's Court for an offence is taken to be a conviction for the offence. Accordingly, following a finding of guilt, the Children's Court may exercise any power it could exercise under that legislation if the person had been convicted of the offence, unless the Court makes an order in respect of the person under section 33 (1) (a).
Note : Section 14 limits the circumstances in which a court can proceed to, or record, a conviction following a finding of guilt in relation to a child offender.
(7) The functions of a juvenile justice officer in relation to the supervision of a person who has entered into a good behaviour bond or been released on probation under this section may be exercised by a community corrections officer (within the meaning of the Crimes (Administration of Sentences) Act 1999 ), and the functions of a community corrections officer in relation to the supervision of any such person may be exercised by a juvenile justice officer, in accordance with any arrangements between Juvenile Justice NSW and Corrective Services NSW.

Section 14 of the Children (Criminal Proceedings) Act 1987 (NSW) provides that:
“(1) Without limiting any other power of a court to deal with a child who has pleaded guilty to, or has been found guilty of, an offence, a court--
(a)shall not, in respect of any offence, proceed to, or record such a finding as, a conviction in relation to a child who is under the age of 16 years, and
(b)may, in respect of an offence which is disposed of summarily, refuse to proceed to, or record such a finding as, a conviction in relation to a child who is of or above the age of 16 years.
(2) Subsection (1) does not limit any power of a court to proceed to, or record such a finding as, a conviction in respect of a child who is charged with an indictable offence that is not disposed of summarily.
Having considered the legislation, I have come to the view that any convictions after the Applicant attained the age of 16, are relevant.
On 27 October 2004, when the Applicant was 16 years of age, he was convicted of assault occasioning actual bodily harm and receiving/disposing of stolen property. He was sentenced to a 12-month bond under s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW).This required him to undergo counselling as directed by the Juvenile Justice Service.[19]
[19] Exhibit 3, G-Documents, Attachment A, 47.
On 8 August 2005, the Applicant was convicted of larceny malicious wounding with a bottle. He was sentenced to a control order and a suspended sentence under s 33(1)(g) the Children (Criminal Proceedings) Act.[20] Applicant spent 11 months in Cobham Corrections Centre.[21]
[20] Ibid.
[21] Ibid Attachment C, 71.
The gravity of this offending was serious.
On 12 October 2005 the Applicant was convicted of possessing a prohibited drug, common assault and property damage. He was placed on a 12-month bond under s 33(1)(b) the Children (Criminal Proceedings) Act.
On 20 December 2005, the Applicant returned to Fiji.[22]
[22] Ibid Attachment R, 160.
On 18 January 2006, the Applicant returned to Australia.[23]
[23] Ibid.
On 4 February 2006, the Applicant turned 18.
On 26 September 2006, the Applicant returned to Fiji.[24]
[24] Exhibit 3, G-Documents, Attachment R, 160.
On 31 October 2006, the Applicant returned to Australia.[25]
[25] Ibid.
On 31 January 2007, the Applicant was convicted of various motor vehicle offences while still a learner including, failing to stop at a red light, failing to display an “L” plate as required, driving without an accompanying driver and driving recklessly/furiously or speed/manner dangerous. He was fined, placed on a 2-year bond and disqualified from driving for 2 years.[26]
[26] Exhibit 3, G-Documents, Attachment A, 47.
On 23 October 2007, the Applicant was in the Robinvale Magistrates Court of Victoria charged with burglary, theft and criminal damage. No conviction was recorded. He was placed on a 12-month Community Based Order.[27]
[27] Ibid.
On 19 December 2007, the Applicant left Australia.[28] He was sent away by his mother to keep him away from anti-social influences. However, he initially told the Tribunal that it was to attend his father’s funeral. He passed away in 2008.
[28] Ibid Attachment R, 159.
On 15 August 2008, the Applicant returned to Australia.[29] He failed to declare his criminal convictions on his incoming passenger card dated 15 August 2008. He claims that this was just an oversight on his behalf.[30]
[29] Ibid.
[30] Ibid Attachment I: Letter from the Applicant’s Representative to the Department of Home Affairs (dated 20.09.2023), 133; Attachment Q: Incoming Passenger Cards of Applicant, Without Declaration of Criminal Convictions, 157; Exhibit 4, Mr Waqavakatoga’s Statement (dated 26.01.2024) at [14].
On 21 January 2009, the Applicant was in the Sutherland Local Court charged with property damage, driving while disqualified and reversing unsafely. He was fined, ordered to do 100 hours of community service, disqualified from driving for 2 years and placed on a 12-month bond.[31] He was placed under supervision and required to obey all reasonable directions for counselling.[32]
[31] Exhibit 3, G-Documents, Attachment A, 45-6.
[32] Ibid.
On 12 February 2009, he was convicted without penalty of traveling by train without a ticket.[33]
[33] Ibid 46.
On 27 May 2009, the Applicant was convicted with 4 counts of driving while disqualified, common assault, affray, resisting an officer in the execution of duty. He was sentenced to periodic detention for 12 months commencing on 5 June 2009; 8 years disqualification from driving commencing from 31 January 2009, and placed on 2 two-year bonds to accept parole supervision.[34]
[34] Exhibit 3, G-Documents, Attachment A, 45-6.
On 14 August 2009, the Applicant was convicted of being carried in a conveyance taken without the owner’s consent.[35]
[35] Ibid.
On 9 August 2010, the Applicant was taken into custody.[36]
[36] Ibid 45.
On 23 September 2010, the Applicant was in the Sutherland Local Court charged with various offences including common assault, affray, resist an officer in execution of duty, driving while disqualified and possession of stolen goods. Both of the bonds imposed on 27 May 2009 were called up. He was sentenced to imprisonment for 9 months commencing on 9 August 2010 and concluding on 8 May 2011. He was disqualified from driving for 2 years commencing on 1 February 2017.[37]
[37] Ibid.
The Applicant told the Tribunal that he could not recall the details of this offending. He then said that although he did not recall what he had done, but he did recall resisting arrest. He said that he was restrained, put on the ground and hand cuffed.
On 8 May 2011, the Applicant was released from custody.[38]
[38] Ibid.
On 16 February 2012, the Applicant assaulted a male victim in a shopping centre car park. He claimed that he believed that the victim had been involved in an earlier break-in at his property. The Court found no evidence to support this claimed connection between the Applicant and his victim. Even if he had good reason to have such a suspicion, taking matters into his own hands, rather than contacting police, is totally unacceptable. His victim suffered a fractured jaw. The Applicant was taken into custody. He was released on bail the following day.[39]
[39] Exhibit 3, G-Documents Attachment B: Sentencing Remarks of the Local Court of New South Wales, 58.
The Applicant showed no remorse, insisting that his victim had been responsible for a break-in at his property.
On 7 April 2012, the Applicant committed an aggravated break, enter and steal offence. He was still on bail at the time for his assault charges. It seems that the offending was not pre-meditated, but it was committed in company.[40]
[40] Ibid Attachment C: Proceedings on Sentence – 2012/143762, 63.
On 6 May 2012, the Applicant was taken into custody. Bail was refused on 7 May 2012.[41]
[41] Ibid 67.
On 19 June 2012, the Applicant was convicted of assault occasioning actual bodily harm in relation to the 16 February 2012 incident. He was sentenced to 16 months imprisonment commencing on 3 May 2012, concluding on 2 September 2013. There was a conditional non-parole period of 6 months commencing on 3 May 2012. His release was subject to extensive supervision.[42]
[42] Ibid Attachment A, 44.
The sentencing remarks of Magistrate Murray, relevantly state:
“HIS HONOUR: In respect to the matter now before the Court, the defendant has pleaded guilty to the offence on the first return date on 17 February. I do note also insofar as that is concerned the concession or agreement reached between the parties that the defendant has spent some 47 days in custody, albeit not wholly in respect to the matter now before the Court. Certainly he has been refused bail and in custody for that 47-day period.
I do note insofar as the matter is concerned, one, that on the information before the Court the victim sustained a broken jaw and was required to consume processed foods for the following three weeks. There is no additional information before the Court as to the nature and extent of any ongoing injury but I remind myself that the defendant has only been charged with an assault occasioning actual bodily harm and not grievous bodily harm.
Quite clearly, however, in my view, the broken jaw does fall towards the upper end of scale for offences of that type. Certainly there may have been a perception at the time that the defendant struck - and I remind myself there was a number of blows within a short space of time, that the victim perceived the complainant in the matter as being responsible for a break-in that had occurred at the property he and his partner then shared at that stage.
Quite clearly, however, sir, this is not the wild west, this is not the way that you behave, even if you have a genuine belief that the complainant in this matter - and I emphasise there is no evidence before the Court that the victim in the matter was in any way, shape or form responsible for the break-in that occurred unfortunately at the defendant’s property, but quite clearly, if you had information which warranted you dealing with him in this fashion, the proper way to deal with it is to merely - to refer the matter to the police and let the law take its course, certainly not to take the law into your own hands.
I do note in dealing with the matter the defendant comes before the Court unfortunately with a long history, both in the adult and juvenile jurisdiction, for offences of violence, and quite clearly sir, I note from the Probation and Parole report that although you are a permanent resident in Australia now, having received that residency in 1999, your behaviour has led to your parents, whilst you were in your teens, sending you back to Fiji because of your antisocial peer group pressure, and no doubt the offences that were being committed at that particular time.
I also note one matter of concern to the Court is in respect of your attitude that you still maintain that the victim was the person responsible for breaking into your property or premises and although conceding your actions were extreme, you do not display any contrition for carrying it out which quite clearly is a matter of concern to the Court.
Quite clearly you are not suitable for any other disposition other than a full-time custodial penalty. Quite clearly the Court wants to send a clear and unequivocal message, not only to you but to other people, if people are involved in criminal offences against you or your property, this is not the way the matter should be resolved.
THE DEFENDANT IS CONVICTED, SENTENCED TO IMPRISONMENT FOR A PERIOD OF 16 MONTHS COMMENCING ON 3 MAY 2012, EXPIRING ON 2 JULY 2013. I FIND SPECIAL CIRCUMSTANCES HAVING REGARD TO HIS AGE AND NEED FOR REHABILITATION. I IMPOSE A NON-PAROLE PERIOD OF SIX MONTHS COMMENCING ON 3 MAY 2012, EXPIRING ON 2 NOVEMBER 2012.
…
PAROLE CONDITIONS ARE AS FOLLOWS:
TO BE OF GOOD BEHAVIOUR, TO ACCEPT THE SUPERVISION AND GUIDANCE OF THE COMMUNITY OFFENDER SERVICES AND THE COMMUNITY COMPLIANCE MONITORING GROUP FOR SUCH PERIOD AS THEY DEEM NECESSARY, TO COMPLY WITH ALL THEIR REASONABLE DIRECTIONS INCLUDING IMMEDIATE ACCESS TO ANY COMPUTER IN YOUR POSSESSION, COUNSELLING AND TREATMENT REGARDING EDUCATION, DRUG AND ALCOHOL REHABILITATION, ANGER MANAGEMENT, DRUG OR ALCOHOL TESTING, PLACE OF RESIDENCE INCLUDING YOUR ATTENDANCE AND SUCCESSFUL COMPLETION OF ANY FULL-TIME RESIDENTIAL PROGRAMME, CURFEW, NON-ASSOCIATION WITH NOMINATED PERSONS ..(NOT TRANSCRIBABLE).. CRIMINOGENIC BEHAVIOUR IDENTIFIED AS REQUIRING ATTENTION.
TO REPORT TO THAT SERVICE AS AND WHEN DIRECTED, AND FURTHER, NOT TO ASSAULT, MOLEST, HARASS OR INTIMIDATE THE VICTIM, NOT TO TELEPHONE OR CONTACT NOR APPROACH WITHIN 50 METRES OF THE VICTIM.” [43]
[43] Exhibit 3, G-Documents, Attachment B, 61-2.
On 3 August 2012, the Applicant was again taken into custody.[44]
[44] Ibid Attachment A1, 52-3.
On 9 April 2013, the Applicant was convicted of aggravated breaking and entering in company. He was sentenced to 2 years imprisonment commencing on 3 August 2012 and concluding on 2 August 2014. A 12-month non-parole period with conditions was set commencing on 3 August 2012.[45]
[45] Ibid Attachment A, 44.
The sentencing remarks of Judge Payne relevantly state:
“HER HONOUR: I convict him of this offence.
The maximum penalty, as I have said, is one of 20 years and the standard non-parole period is five years. He is entitled to a reduction of 25 percent for utilitarian considerations and I do accept that he is regretful of this offending behaviour.
The Court did not have the benefit of a presentence report. On the other hand, he gave sworn evidence and I have taken careful account of that sworn evidence.
He has certainly had some difficulties in his early life - very real difficulties, and then other difficulties in custody, but unfortunately he drinks alcohol and then commits offences and returns to custody or his life just gets into some sort of state of disarray and there it is and it has been going on now for quite a considerable period of time.
But in any event, what the Court does know is that he was released after a significant period and unfortunately released full term on 18 May 2011. For a reason that is still hounding him, he failed, as he said, the Young Offenders Programme which is quite sad for him but in any event that is what happened, and he was released with a B classification.
Anyway, he has been back in gaol now for some period. He formed a relationship with a young lady who apparently was not all that desirable. On the other hand, it cannot be said assaulting someone in Centro when people are shopping, in the main shopping area, is commendable either. Anyway, he is serving a sentence for that.
Going into the factual circumstances of the offence, they are found in an agreed facts document which is as follows:
“M.G. owns [business] at [address] Lavington. The premises were secured at 6pm on Thursday 5 April 2012.
Around 10.15pm on Saturday 7 April 2012, I.T was at [business], Wagga Road, Lavington, waiting to collect a friend who was working. I.T heard banging and went to the rear of Eagle Boys and looked over a fence. I.T saw a male wearing a red hooded jumper and shorts A.E. kicking at the glass front door of [business]. A.E entered the shop and turned the lights on. I.T saw Lepani Waqavakatoga (Waqavakatoga) also enter the shop. A third male J.K stood some distance from the shop.
I.T contacted Police who attended the scene. Upon attending the premises, Police observed the glass front door was smashed and the business had been ransacked. Police searched the area and located Waqavakatoga and J.K approximately 600 metres away from [business] walking south from Urana Road in Wagga Road, Lavington.
Waqavakatoga was searched. A bottle of Jim Beam bourbon was located on his person. The bottle was missing its lid. A white coloured lid was located outside the door of [business].
Waqavakatoga was arrested and declined to participate in an electronically recorded interview with Police. Waqavakatoga also declined to participate in an identification parade.
A.E was located in the Coles car park, on the corner of Griffith Road and Urana Road, Lavington, approximately 400 metres from [business]. A.E was wearing clothing consistent with that described by the witness. A.E was searched. Nothing of interest was located on his person.
[business] was subject to forensic analysis. The left index fingerprint of Waqavakatoga was located on the neck of a bottle of unopened wine inside the business premises.
Waqavakatoga was arrested on 6 May 2012 and participated in an electronically recorded interview with Police.
On 21 October 2012, Police served a Field CAN on A.E.
Approximately $100 from the cash register, two iPods valued at a total of $350 and two cans of beer were taken from [business]. Two bottles of wine were removed from the fridge in the rear of the shop. One bottle of wine was partially consumed.
Numerous items were damaged when the business was ransacked, including:
·the front glass door, which was repaired at a cost of $330;
·signage on the door valued at $374;
·a 3TB external hard drive valued at $150;
·two pairs of clippers, total value of $549.90;
·Roberto Cavalli sunglasses valued at $800;
·stationery, gift cards, marketing products and wax valued at approximately $500.”
He was trying to get work and it is always difficult for anybody but it must be so difficult for somebody coming out of gaol, and then of course he resumed drinking alcohol. On this occasion I accept the defence submission that he was not the catalyst but the follower and he went into these premises. Someone else kicked the door in but there was damage to the shop and general deterrence must be a significant feature of this sentencing exercise.
He was also on bail at the time which is a feature of aggravation - bail for the assault.
Mr King quite properly put that the indictable offence was stealing. The feature of aggravation was in company. They were commercial premises, no sentimental items, and alcohol seems to have been one of the reasons why they sought to get into the premises. Seven hundred and four dollars has been lost to the owner of the premises.
There was not any planning, it was a spur of the moment decision, but in fact someone virtually observed what was happening.
Mr King submits there are prospects of rehabilitation. It is going to be difficult for him because he has already spent quite a bit of time in custody and then he also had the time in Cobham, but in any event he seems to be a healthy and strong young man and it will be a matter for him, as best he can, when he gets out, what he determines to do. But of significance, he will be on parole.
Yes, thank you, could he just stand up please, thank you.
In relation to this matter, the sentence I would have imposed prior to reduction for utilitarian considerations is one of two years and nine months, reduced by 25 percent is 24.75 months or two years 23 days, rounded down to two years.
I impose the following non-parole period. The non-parole period is one of 12 months commencing on 3 August 2012, expiring on 2 August 2013. The total term is one of two years from 3 August 2012, expiring on 2 August 2014 and I direct your release to supervised parole on 2 August 2013 and then you will be on parole for one year.
I confirm the compensation order in the sum of seven hundred and four dollars. Twenty-eight days to pay.”[46]
[46] Exhibit 3, G-Documents, Attachment C1: Sentence – 2012/143, 85-8.
From 2 August 2013, the Applicant was eligible for supervised parole. This period expired on 2 August 2014.[47]
[47] Ibid 88.
On 6 May 2016, the Applicant left Australia and returned to Fiji.[48]
[48] Exhibit 3, G-Documents, Attachment R, 159.
On 17 February 2017, the Applicant returned to Australia. He failed to declare his criminal convictions on an incoming passenger card dated 17 February 2017. He claims that this was just an oversight on his behalf.[49]
[49] Ibid Attachment I, 133; Attachment Q, 157; Exhibit 4, Mr Waqavakatoga’s Statement (dated 26.01.2024) at [14]-[15].
On 13 December 2017, the Applicant was convicted of affray and sentenced to an intensive corrections order for 8 months commencing on the same date and concluding on 12 August 2018.[50]
[50] Exhibit 3, G-Documents, Attachment A, 44.
The Applicant claimed not to recall the details of this incident.
On 25 July 2019, the Applicant was convicted of various motor vehicle offences including use of an uninsured vehicle, use unregistered registrable motor vehicle on road and driving while disqualified. He received multiple fines and disqualified from driving for a further 6 months commencing on 25 July 2019.[51]
[51] Ibid Attachment A, 43-4.
On 11 September 2019, the Applicant was convicted of driving under the influence of drugs. He was fined $750 and disqualified from driving for 6 months from 11 September 2019.[52]
[52] Ibid 43.

The Applicant said that his relationship with C.B started in 2019. In the Applicant’s material contained in his request for revocation dated 15 March 2023, he states that: “I’ve been with my partner just over 3 years now. We met at the city of Sydney. Planning to get married upon release. Getting engage. A negative outcome will be devastated because we both love and care for each other. And were planning to get married”.[53] The Applicant said that he had secured public housing for them which he had “signed over to her” when he went to prison. She was living on government benefits.
[53] Ibid Attachment G: Personal Circumstances Form, 114.
On 23 March 2020, the Applicant was convicted of multiple offences including breach of bail conditions, dealing with the proceeds of crime, possession of stolen goods, driving when disqualified, driving a vehicle without the consent of the owner, resisting a police officer, possession of a prohibited drug, escape from police custody and giving a false name or address. He was fined and sentenced to an Intensive Corrections Order for 15 months commencing on 23 March 2020 and concluding on 22 June 2021.[54]
[54] Ibid Attachment A1,49-52.
The Tribunal asked the Applicant about this incident. He said that he was catching a train and he was stopped by police who wanted to question him. He ran away. He did not offer an explanation as to why. He was chased and arrested. He gave a false name. He could not recall anything about why the police wanted to question him, or anything about stolen goods.
On 3 August 2020, the Applicant was convicted of driving with illicit drug present in the blood. He was fined $550 and disqualified from driving for 12 months, commencing on 3 August 2020.[55]
[55] Exhibit 3, G-Documents, Attachment A 49.
In about 2021, the Applicant says that he started on a methadone programme to control his drug use. He is still on it.
On 1 November 2021, the Applicant assaulted a co-worker on a construction site.[56] Despite entering a plea of guilty, the Applicant expressed no remorse, claiming to have acted in self-defence. He told the Tribunal that he was not under the influence of drugs or alcohol at the time.
[56] Ibid Attachment D, 94.
The Applicant told the Tribunal that this was a “small incident with another worker….words were exchanged… we got into a scuffle… he grabbed a weapon, so I grabbed something to defend myself… I wasn’t in the wrong… he came and removed equipment… it was just a fight… I believe that I got an unfair trial… she sentenced me straight away… just by looking at my criminal history. It wasn’t my fault and it wasn’t bad enough to be sentenced to prison.”
On 20 January 2023, the Applicant was taken into custody. He was convicted of assault occasioning actual bodily harm. He was sentenced to 8 months imprisonment, commencing on 20 January 2023 and concluding on 19 September 2023, with a 5-month non-parole period concluding on 19 June 2023.[57] The sentencing remarks of Magistrate Moody relevantly state:
[57] Ibid Attachment A, 49.
“TAMBYRAJAH: I can indicate a plea of guilty to sequence 1, assault occasioning actual bodily harm, and I understand my friend will be withdrawing sequence 2.
PROSECUTOR: Yes, those are my instructions.
HER HONOUR: The accused in the matter is Lepani McVaqaloma(?). Is that an alias?
TAMBYRAJAH: Lepani? No, that’s his name.
PROSECUTOR: It’s an alias, your Honour.
HER HONOUR: Yes, that’s what I thought. But it’s not on the. What a nasty bully man this man is. What a nasty bully. Is his victim a male or female?
PROSECUTOR: The complainant, a male, is actually in the courtroom today.
HER HONOUR: Yes, what did you want to say? I think he’s crossed the threshold with this, with that record.
TAMBYRAJAH: Yes, my friend and I were just looking to see whether or not he’d breached any ICOs but I don’t think he has.
HER HONOUR: He’s only just out of one.
TAMBYRAJAH: Yes, your Honour. In terms of his record, he has got a very bad record, and that’s conceded.
HER HONOUR: He’s got a nasty history of violence. You see this on construction sites, with bullies like your client. No doubt the victim’s in an inferior position. Apologetic, doing the right thing, he couldn’t wait to have a go. You are a violent man, and you need to do something about it. Yes, I think he’s crossed the threshold here, I really do.
TAMBYRAJAH: Yes, your Honour.
HER HONOUR: What did you want to say in relation to the matter? He’s in custody before.
TAMBYRAJAH: He has, your Honour. I wouldn’t argue that the threshold’s been crossed, but I’d ask that your Honour not send him to gaol today.
HER HONOUR: Why’s that? Why wouldn’t I? Are you asking me for another intensive corrections order? He’s only just out of one.
TAMBYRAJAH: Yes. That would be my ultimate submission, your Honour.
HER HONOUR: Thank you. Anything else you want to say in relation to the matter?
TAMBYRAJAH: If your Honour wanted a little bit of background about him, he is in full-time employment now, in bricklaying. He’s 34 years old. His words, not mine, to me this morning, “I am changed. I have thought--"
HER HONOUR: He’s changed, has he? He hadn’t changed on 1 November 2021.
TAMBYRAJAH: Yes, your Honour. That’s why I indicated to your Honour his words, not mine. He has indicated to me that he’s trying to mature. He’s in a serious relationship now too, whether that’s hopefully had a good effect on him. He’s of Fijian background, grew up in this country. He’s got a mother and stepfather that are in his life as well. And he is remorseful.
TAMBYRAJAH: He has pleaded at the last opportunity, being the day of the hearing, and unfortunately the victim has had to attend today, thinking that he was to give evidence in this matter. So obviously the discount on sentence for his plea-
HER HONOUR: He’s entitled to 10-15%.
TAMBYRAJAH: Yes, your Honour.
HER HONOUR: What do you say, sergeant?
PROSECUTOR: I echo your Honour’s submissions. The prosecution submit the s 5 threshold is crossed. Your Honour summarised the fact but in short it’s an unprovoked attack. It’s a completely disproportionate response. It’s an incident that arises in a workplace, where it ends up involving a steel pole being swung. It’s aggravated by firstly the fact that it’s not the earliest plea, the fact that it’s unprovoked, and also your Honour raised the defendant’s criminal history. What his history shows is this. A history of violence. He’s a recidivist offender. He’s received ICOs in the past.
HER HONOUR: He’s had every chance.
PROSECUTOR: He’s had every chance. What it shows is that those ICOs and other Court-ordered bonds haven’t had those desired deterrent effects. When your Honour’s sentencing the defendant, I would ask your Honour to put the safety of the community at the forefront and consider the nature and extent of harm caused to the complainant. As I understand, and I don’t have any documentation to support this, the complainant never returned to work as a result of this incident.
Ultimately, the prosecution say the s 5 threshold has been crossed.
TAMBYRAJAH: Just in response to one part of my friend’s submission - I’m not indicating that it’s not serious at all - in respect of the piece of scaffolding that was picked up by my client, in fairness to my client, it was in response to the labourer having a shovel in his hand. That’s not reflected in the facts. It is reflected in the victim’s statement that the labourer had a shovel, and it was in response to that, my client did up pick up scaffolding. Not trying to indicate that him picking that up was the right response. However, that does paint the entirety of the picture of what occurred.
HER HONOUR: But he’s got a shovel in his hand. Are you saying the person who intervened had the shovel, or the labourer, or the victim?
TAMBYRAJAH: Not the victim. There was another person present, another labourer, another worker, yes.
HER HONOUR: Has he spent any time in custody referrable to this?
TAMBYRAJAH: No, your Honour.
HER HONOUR: And you’re not asking for special circumstances? I see he’s had the benefit of them in the past.
TAMBYRAJAH: Yes, your Honour, I can’t raise any.
HER HONOUR: In this matter, Lepani Waqavakatoga is charged with an offence of assault occasioning actual bodily harm. He’s pleaded guilty to that charge, not at the earliest opportunity. The matters were listed for hearing today. I do note, however, that there has been some negotiations, and that a charge of using offensive weapon with intent has been withdrawn.
HE IS ENTITLED TO A SMALL DISCOUNT FOR THE PLEA, GIVEN THAT THE VICTIM AND OTHER WITNESSES WERE NOT SUBJECTED TO HAVING TO GIVE EVIDENCE IN THE WITNESS BOX, AND I NOTE THAT THE VICTIM IS PRESENT IN COURT, AND NO DOUBT OTHER WITNESSES ARE, PERHAPS, AT THE READY TO GIVE EVIDENCE AS WELL.
BUT HE IS ENTITLED TO SOMETHING IN THE RANGE OF 10-15% FOR HIS PLEA OF GUILTY TO ASSAULT OCCASIONING ACTUAL BODILIY HARM.
The circumstances were, the victim in the matter is not known to the offender, and that person’s name is C.M , who’s some ten years younger than the offender.
On 1 November 2021 in the morning, the victim was working as a labourer at a construction site at [business] in Kirribilli. The offender was also working at the location. The construction site has a number of pieces of machinery and building materials throughout the worksite. The victim was moving a pallet jack on the ground of the construction site. The pallet jack the victim was using was blocking the stairway at the location. A short time later, the offender became agitated that the pallet jack was moved. Another labourer at the location apologised to the offender for moving the pallet jack, and began sweeping the area where the pallet jack had been moved from.
The labourer then asked the offender if the pallet jack could be returned to its original position. The offender became aggressive. The victim then attempted to defuse the situation and asked the offender to calm down so they could continue working.
As the victim did so, he had his hands up in front of his chest. The offender then began to question the victim as to why his hands were up. The offender then clenched his fists. The victim began to walk backwards.
The offender then hit the victim repeatedly in the face and head with closed fists. The victim felt immediate pain in the area, put his hands up in front of his face in an attempt to block the punches. The other labourer attempted to intervene and deescalate the situation. The offender then stopped punching the victim and began punching the labourer. The victim continued to step backwards in an attempt to remove himself from the situation. The offender then stopped punching the labourer and picked up a piece of steel scaffolding bar and began to swing up in the direction of the victim and attempt to hit him. The victim also continued to make attempts to leave to avoid any confrontation.
The victim suffered a large lump to his forehead as a result of the strikes to the head and face by the offender. He sought medical attention and felt dazed and unwell after the occurrence.
I’m just trying to find the bit about the shovel. Where’s that?
TAMBYRAJAH: It’s in the victim’s statement, which has not been tendered.
HER HONOUR: I got very confused about that.
TAMBYRAJAH: It’s not reflected in the fact sheet. It’s only in his statement.
HER HONOUR: Yes. In any event, assault occasioning actual bodily harm carries five years imprisonment on indictment. Of course, I have got a jurisdiction of two years.
The offender comes before the Court with a very bad history of violence, commencing in 2008, when he received a s 9 bond for common assault. That was called up.
He has also been convicted for resisting officers in the execution of their duty, being carried in a conveyance, but, most seriously, in 2012 he was imprisoned for 16 months with a non-parole period of six months for the offence of assault occasioning actual bodily harm. He then, in 2013, was imprisoned for break and enter. He received an intensive corrections order for the offence of affray in 2017 for a period of eight month. He then received a further intensive corrections order for possessing identity information and failing to appear and dealing with proceeds of crime. He then received yet another intensive corrections order for drive conveyance without consent of the owner and goods in custody. He has a number of driving matters on his record, then destroy/damage property. He has an escape police custody, also for which he received an intensive corrections order. That was imposed on 22 June 2021. And of course, but months later, he committed the offence before this Court.
I consider this an extremely viscous attack on a subordinate on a building site. This sort of bullying on building sites is not unusual, and his behaviour was completely - conceded by Ms Tambyrajah, who represents him today – disproportionate.
He is in full-time employment. He says he has changed. That is not something that I could have any confidence about, given his record. He is in a serious relationship now. He has a Fijian background. And Ms Tambyrajah says that he is remorseful. That may be so but I consider that he is a danger to members of the community and clearly to people who he works with in being prepared to so viciously attack someone he does not know for so little provocation.
IN THE CIRCUMSTANCES, I CONSIDER HE HAS CROSSED THE THRESHOLD.
The defence has conceded that fact.
AND I CONSIDER THAT NOTHING OTHER THAN A SENTENCE OF FULL-TIME CUSTODY IS APPROPRIATE IN THE CIRCUMSTANCES, AND WHAT I INTEND TO DO IS IMPOSE A HEAD SENTENCE OF EIGHT MONTHS, COMMENCING FROM TODAY’S DATE, WITH A NON-PAROLE PERIOD OF FIVE.
He can be taken into custody.
ACCUSED: Thank you, your Honour. Come on, your Honour. Are you serious? It wasn’t a provoked attack. It happened at the workplace, yeah? I just - I was in self-defence. I have - I have the right, yeah?
HER HONOUR: Go away.
ACCUSED: Eight months. Are you serious?
HER HONOUR: Yes, you will be eligible for release in five months. The sentence dates from today’s date. You will be eligible for release in five months from today’s date, as long as you behave yourself in custody.
ACCUSED: Come on, your Honour. I just got a job and I’m trying to do the right thing, yeah? Give me a chance, yeah?
HER HONOUR: You have had a lot of chances. Can you please take him--
ACCUSED: Are you serious?
HER HONOUR: Can you take him away? Thank you very much.
ACCUSED: No worries. Thank you, your Honour.” [58]
[58] Exhibit 3, G-Documents, Attachment D: Sentencing Remarks of the Local Court of New South Wales, 91-6.
On 24 January 2023, the Applicant was fined $500 for stating a false name or address.[59]
[59] Ibid Attachment A1, 49.
On 21 February 2023, the Applicant was convicted of driving while disqualified.[60]
[60] Ibid.
On 21 March 2023, the Applicant was yet again convicted of driving while disqualified. He was sentenced to 3 months imprisonment commencing on 15 March 2023 and concluding on 14 June 2023. He was disqualified from driving for 12 months, commencing on 31 January 2024.[61]
[61] Ibid Attachment A, 40.
On 24 March 2023, the Applicant was convicted of having given a false name or address.[62]
[62] Exhibit 3, G-Documents, Attachment A, 40.
On 27 March 2023, the Applicant’s mother provided a statement of support for the Applicant. This states:
“My name is K.Y.V and I am Lepani's mother. I am writing with regards to his RRV visa that has been cancelled. First of all, I want to apologize for his behaviour and for whatever caused it's cancellation. I am quiet upset at how it turned out considering Lepani's personal efforts to make a decent life for himself here in Australia. Thing’s started looking good for him since he last entered the country 7 years ago from Fiji. He was with the porter's house church where He got involved with church activities liaising with local communities and making a positive impact on those who were like him. A few years after that, He met his current girlfriend C.B and resided with her in [location].
Lepani was employed by [employer] when He got arrested for this minor event and had been since 2020. Quiet unusual for Lepani considering his changed behaviour since his arrival from Fiji. Unfortunately for him, and because of his past record with the system, it had somehow resulted to all these. He had been looking after his current girlfriend, C.B (47 years old) unemployed and also involved in helping her look after her father who had passed away not long ago. Lepani is a selfless person who is eager to help those in need. He has also been helping me financially whenever he could. I know he had been trying hard to do something good for himself. I still believe that Lepani can change for the better if given another chance. I know as a mother, that this turn of event will be a lesson in itself for Lepani. Please reconsider my sons visa, thank you.”[63]
[63] Ibid Attachment L: Letter of support from K.Y.V (applicant's mother, dated 27.03.2023), 137.
On 28 March 2023, C.B provided a statement of support for the Applicant. This states:
“My name is C.J.B. I'm Lepani Mate Waqavakatoga's Fiancee'.
I've know Lepani Waqavakatoga for over 5 years now. We initially met at Church and quickly became good friends. We've been together ever since. Lepani is the most hard working selfless person, I've ever met.
He was with me throughout my Mother's and Father's death.
He would spend his nights and weekends looking after my Father endlessly. My Father, Mr I.F.W, was a very high regarded man. My Father was a border and graduate at [Institution], QLD.
He passed last year in July 22. Lepani was there by his side with me when he passed. Lepani had played such a huge role in my family, in looking after my Father.
My whole family adores Lepani. He had a rough start to life but since I've known him, he's been totally honest with everything that has happened throughout his years of growing up. He was abused physically as a child and I believe that is the catalyst for the way Lepani handled his growing up years.
He has been happy and working consistently since the end of 2020 with [employer]. He will also be re employed by them the day after he is released from his sentence.
It would be a travesty, for both Lepani's parents and family in Australia along with my family, if he's Visa isn't reinstated.
I believe it's been the stress of my parents passing, that Lepani helped look after, along with the loss of his Aunty and Grandmother, that contributed to him forgetting to renew his Visa and passport.
Also in the last four or so years, we've been dealing with COVID. Normally Lepani Waqavakatoga would have gone home for a visit but has been unable to. So please, I beg of you to reinstate his Visa.
We, Lepani and myself [first name] are getting Married this October. Please, as we've said, it was due to human error why, Lepani's Visa wasn't reinstated.
We kindly ask you, for leniency in this matter. Please?”[64]
[64] Exhibit 3, G-Documents, Attachment K: Email from C.B (applicant's fiancée) to the Department—Letter of Support (dated 28.03.2023), 136.
On 4 July 2023, the Applicant was again convicted of multiple offences including driving while disqualified and failing to give particulars to owner of damaged property. He was disqualified from driving for another 6 months, commencing on 4 July 2023.[65]
[65] Exhibit 3, G-Documents, Attachment A, 40.
On 11 August 2023, when a detainee, the Applicant was in volved in a loud argument. A Code Black was initiated.[66] The Applicant says that this was a “minor disturbance” and that it was “resolved” after he provided a response.[67]
[66] Ibid Attachment P: Client Incident Report, 151.
[67] Exhibit 4, Mr Waqavakatoga’s Statement (26.01.2024) at [13a].
The Australian Criminal Intelligence Commission Report generated on 22 August 2023, reports that aside from his real name, the Applicant has also operated under 5 aliases.[68]
[68] Exhibit 3, G-Documents, Attachment A, 39.

On 12 October 2023, when a detainee, the Applicant was found with blood coming off his ear. This followed an incident of raised voices in a compound. The Applicant refused medical attention or to explain what had happened.[69] He claims that this matter has been “resolved”.[70]
[69] Ibid Attachment P, 149.
[70] Exhibit 4, Mr Waqavakatoga’s Statement (26.01.2024) at [13c].
On 25 October or 1 November 2023, when a detainee, an improvised bong was found in his room.[71] The Applicant says that this belonged to his roommate.[72]
[71] Exhibit 3, G-Documents, Attachment P, 147.
[72] Ibid Attachment P1: Email from the Applicant to the Department with attached submissions in response to Client Report Incident, 155; Exhibit 4, Mr Waqavakatoga’s Statement (26.01.2024) at [13d].
The Applicant’s mother and stepfather live in Australia. He also claims to have 2 aunts and 2 uncles here as well as 3 cousins. He has no nieces/ nephews here and no children. He says that he is close to his family.[73]
[73] Exhibit 3, G-Documents, Attachment G, 119.
In relation to his history of offending, the Applicant says:
“Outline any factors you believe help explain your offending, that you want the decision-maker to take into account.
Before I arrived in Australia, I was sexually abused as a child. As I arrive in Australia living with my stepfather. I was physically abused by my stepdad. The trauma and the pain I suffered which led to offending. It brought a lot of stress, anxiety, I wasn’t in the right state of mind. Mental illness for the past 2 years. I’ve had a steady job. I want to become a better person. Getting all the necessary help I can get upon release.
If you have completed any courses or programs that will help you to avoid further offending, provide details of these and attach evidence.
Addiction course.
Alcohol and Drug Course
N/A – Anger Management
Seeing a Psychologist
SSIP (Short Sentence Intensive Program)
If you have previously received a warning(s) from the Department or Minister and have offended since, explain any circumstances that you want the decision-maker to take into account.
I plea lineancy on making the decision
I plea lineancy not to cancel my visa
Please give me a second chance
Provide information on what you believe to be the risk of you offending in the future, and you supporting reasons.
I’m getting all the help I need not to be offending in the future. I’m doing programs that’s helping me plan to get married and settle down. I’m getting all the help I need not to reoffend in the future.”[74]
[74] Exhibit 3, G-Documents, Attachment G, 120.
The Applicant says that he worked as a labourer between 2020 and 2022.[75] This is supported by a reference from his employer.[76] His work history is otherwise unsupported by independent evidence. It seems most probable that he has had an intermittent history of itinerant unskilled work. Given the Applicant’s lack of credibility, I treat his claimed work history with caution.
[75] Ibid 121.
[76] Ibid Attachment M: Letter from Mr B.T, [business name] —Personal reference,138.
The Applicant says of his connections to the Australian community and current medical treatment:
“List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc. Provide any references in support.
Salvation Army worker
Potter House Church (Hurstville)
Youth Worker, Motivational Speaker.
Labourer, Asbestos Removal, Telehandler Operator.
Give details of any hardship you believe would be caused to members of the Australian community, if you were to be removed from Australia. Provide any letters of support.
My community would be devasted if I were to be removed from Australia.
If you are currently being treated by any doctor/health professional/counsellor, provide details that you want the decision-maker to take into account. You may wish to provide a report regarding your treatment and progress.
Being treated for my drug use, alcohol. Seeing a psychologist. 1 on 1 counselling.”[77]
[77] Exhibit 3, G-Documents, Attachment G, 122.
The Applicant says if he was returned to Fiji:
“Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?YES
If yes, describe your concerns and what you think will happen to you if you return.
Homeless, my real father has passed away. I only got my mum. No family. No where to live, no shelter, no financial support.
Are there any other problems you would face if you have to return to your country of citizenship?
A lot of problems, not able to survive financially, physically, mentally. No family support. Homeless.”[78]
[78] Ibid Attachment G, 123.
The Applicant has provided a psychological assessment report from Mr. Mitchell McLean dated 24 January 2024. This was obtained at the request of his solicitors. Mr McLean was not called. The Applicant told the Tribunal that this phone contact with Mr McLean was his first and only contact with a psychologist, despite having been referred to such services by corrections in the past. This report relevantly states:
“…
Social and Relationship History
[21] He said that he met his current partner of five-year, W, at 30-years-of-age at church. When asked to describe her, he responded “she is a lovely, gorgeous, beautiful person. She has a beautiful personality. She comes from a good family”. He stated that arguments with W were infrequent and could be resolved without violence; however, he later disclosed shoving W following an argument which led to an ADVO. He said that the ADVO expired in late 2024 and that he was allowed to reside with W but not harm her. Mr Waqavakatoga confirmed that W consumed alcohol on occasion and did not use drugs. Mr Waqavakatoga reported that he was planning on getting engaged to W prior to him being placed in detention, and that the two of them avoided discussing what life would look like if he was deported since it was too distressing. He said that he had not told her about his sexual assault, but suspected that she would be supportive if he discussed this with her.
[22] He denied having biological children. He said that he loved W’s two sons aged 17 and 14 He said that he treated her sons as if they were his own.
Education and Employment History
[27] Mr Waqavakatoga reported that in high school he often mucked up in class, wagged once per week, and failed to follow the direction and guidance of his teachers. He suspected that his home difficulties were responsible for his misbehaviour and problems with authority figures in school. He recalled fighting a student in grade 10 after the student mocked him which led to his expulsion. He denied returning to school and completing his school certificate.
[28] He reported that following school he worked on a casual basis at [employer] as a customer service assistant for seven-months before moving to a farm to perform full-time work for two years which involved plating, picking, and packaging duties.
[29] Mr Waqavakatoga stated that since leaving his farm work, he had worked in construction. When asked what he liked about construction, he responded “it keeps me moving and keeps my mind occupied”. He identified that his approximately six-year long career in construction was intermittently broken up given his offending and substance abuse.
[30] He said that prior to his index offending, he was employed on a full-time basis for three-years with [employer] performing brick laying duties. He expressed that he respected and admired his boss since he took a chance of him and that he spoke with his boss daily whilst in detention, who was eager to have him back at work.
Alcohol and Other Drug Use History
[32] Mr Waqavakatoga reported that he started drinking alcohol and smoking cannabis at 14-years-of-age to feel included amongst his antisocial peers. He said that he started smoking ICE (methamphetamine) at 25-years-of-age out of curiosity, and heroin at 26-years-of-age following a workplace injury.
[33] He acknowledged that his use of alcohol and drugs rapidly increased, as he developed tolerance and withdrawal symptoms when going without alcohol and the above drugs. He explained that he was only able to cut down on a drug, after discovering a new drug, or being incarcerated.
[34] He identified that he liked how alcohol and cannabis numbed his emotional pain, including thoughts and feelings stemming from his sexual assault and home violence. He said that liked that ICE made him feel energetic and “on top of the world”, and how heroin numbed his physical pain.
[35] Mr Waqavakatoga denied having experienced a drug induced psychosis, or being treated in a hospital for alcohol/drug use. He denied having injected ICE or heroin, since he witnessed inmates sharing needles in prison which led to feelings of disgust.
[36] Mr Waqavakatoga reported that he was aware of the long-term harms associated with alcohol/drug use since he had completed AOD offender behaviour change programs and attended alcoholics anonymous (AA) and narcotics anonymous (NA). He noted that his AOD intervention was helpful; however, he accepted his difficulties with prior relapses.
[37] He identified that he last consumed alcohol two-years-ago, cannabis over a decade ago, ICE in July 2023, and heroin three-years-ago. He denied experiencing active cravings or urges to use alcohol or drugs. He stated that he commenced methadone (opiate maintenance treatment) three years ago which effectively managed his cravings. Mr Waqavakatoga said that he was administered methadone on a daily basis, and was planning on switching to depot (long lasting injection) prior to being placed in detention.
Medical and Psychiatric History
…..
[48] Mr Waqavakatoga denied having undergone treatment with a psychologist or psychiatrist. He said that he had avoided psychological treatment in the past since discussing his trauma was distressing; however, since being placed in detention he was interested in and motivated to engage in psychological treatment. He noted that he was open to psychiatric treatment to manage his mental health and risk of recidivism.
Offending History
[49] Mr Waqavakatoga reported that his offending did not commence until he fell in with the wrong crowd after running away from home at 14-years-of-age.
[50] He stated that he often offended in order to feel included amongst his pro-criminal friends. He identified that he was highly impressionable. He denied engaging in break and enter and theft offences in order to fund his drug dependencies.
[51] Mr Waqavakatoga identified that his violent offending was the result of him losing his temper following disagreements or conflict with others. He noted that his violent offending occurred exclusively within the context of significant alcohol or drug intoxication (this was inconsistent with his account regarding his violent index offence).
[52] When asked what he believed he needed in order to abstain from further crime, he identified full-time work and mental health support to address his traumatic past. Mr Waqavakatoga advised “when I was working (over the prior three-years), I felt good about myself, and I wasn’t doing any crime”.
[53] When asked whether he accepted full responsibility for his prior and index offending, or believed that he was a victim of circumstances outside of his control, he responded “I accept full responsibility. I don’t blame anyone else. I blame myself entirely, I was in the wrong”.
[54] Mr Waqavakatoga was asked to comment on his attitude towards the police, courts, and the law. He stated, “to be honest, the last one dating back last year (the violent index offence) before I came in (incarceration), I feel I didn’t get a fair look at since this happened at work. It was an argument between two people. It didn’t turn out to be something bad. The sentence that I copped for it; it was too much. Eight months for a heated argument”.
[55] When asked to comment on his violent index offence, he stated that he assaulted a work colleague after his colleague moved a work pallet without his permission. He noted that his colleague “said something under his breath” which caused Mr Waqavakatoga to lose his temper.
[56] When asked whether the felt a sense of guilt, remorse, or shame given his offending history, Mr Waqavakatoga responded “yes of course. I am not proud of what I have done. I am deeply remorseful of what I have done. I don’t blame anyone other than myself”.
PSYCHOMETRIC TESTING
[57] Mr Waqavakatoga was forwarded psychometric assessments to complete including the Personality Assessment Inventory (PAI; Morey, 2007), PTSD Checklist 5 (PCL-5; Weathers et al., 2013), and Adult ADHD Self-Report Scale (Kessler et al., 2005) to assess his mental health and functioning (including symptom validity), risk/need factors, and aid in treatment planning. He did not return his assessments despite being reminded to complete them on multiple occasions. It was explained to him that not completing these assessments could negatively affect his application. Mr Waqavakatoga explained that the computer room at the detention centre was shut after a detention officer was assaulted. This explanation did not account for the days available to him to complete the assessments prior to the detention officer being assaulted.
RISK OF RE-OFFENDING
General Risk/Need Factors - LS/CMI
[61] Mr Waqavakatoga’s criminal history was extensive and commenced in late adolescence. This was a poor indicator that he could abstain from further crime; however, offending behaviours tend to reduce within the fourth decade of life.
…
[68] Mr Waqavakatoga demonstrated features typical of the antisocial personality pattern given his repeated failure to abstain from offending, deceitfulness (as indicated in his criminal history report, e.g., “driver or rider state false name or home address”), impulsiveness, and irritability/aggression. Connecting with his former procriminal friends appears to have been a significant motivator in explaining his antisocial behaviour, and his prior substance dependencies likely best explains past irresponsibility within the context of employment.
Risk comparison – LS/CMI
[74] Mr Waqavakatoga scored equal to or higher than 26.6% of the 35,228 incarcerated male offenders in the normative sample. This means that 73.4% of the incarcerated male offenders in normative sample had a higher total score than Mr Waqavakatoga.
[75] Mr Waqavakatoga scored equal to or higher than 59.1% of the 79,523 community-based male offenders in the normative sample. This means that 40.9% of the community-based male offenders in the normative sample had a higher total score than Mr Waqavakatoga.
CLINICAL OPINION
[76] Mr Waqavakatoga is a 35-year-old male whose Class BB Subclass 155 Five Year Resident Return visa was cancelled as per s501CA(4) of the Migration Act 1958 (the Act) given his offending history. He is wanting to remain in Australia.
[77] Mr Waqavakatoga reported that he was sexually assaulted by a cousin when he was seven-years-of-age.
[78] This appears to have led to him developing posttraumatic stress disorder (F43.10) as per Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). He described the four core features of PTSD including intrusion (e.g., feeling physiological distress when reminded of his sexual assault), avoidance-coping (i.e., he noted that I was the first person he had discussed his sexual assault with at length since he avoided the distress accompanied with thoughts involving his trauma), negative alterations in cognition and mood (e.g., he stated that he struggled to trust others and developed low self-esteem), and hyperarousal (e.g., he noted that he was an irritable person who struggled to control his temper at the slightest provocation).
[79] Mr Waqavakatoga’s poor mental health owing to his trauma appears to have been exacerbated following his relocation to Australia where he was exposed to his stepfather’s violence. Violence appears to have been normalised for Mr Waqavakatoga at a sensitive age in his development. Although he disclosed a loving and supportive relationship with his mother throughout childhood, he appeared to experience some neglect owing to his parents work schedules.
[80] He recounted running away from home at 14-years-of-age to escape his home violence, and falling in with the wrong crowd. His motivation to offend as an adolescent and into his adulthood appears to have stemmed, in part, to gain proximity to his antisocial friends, and maintain these relationships over time. I suspect that loneliness (owing to his relocation to Australia) and low self-esteem owing to his trauma has made him vulnerable to forming antisocial attachments.
[81] He described being introduced to alcohol, cannabis, methylamphetamine (ICE), and heroin via his antisocial peers in his adolescence and early adulthood. Mr Waqavakatoga might have learned that he could use alcohol/drugs to connect with his antisocial friends, but also to numb internal and external reminders of his trauma and difficult home life. His alcohol/drug use would have been his core coping mechanism. Over time he would have developed alcohol use disorder (F10.20), cannabis use disorder (F12.20), stimulant use disorder (F15.20), and opioid use disorder (F11.20) as per DSM-5-TR. Following this, his motivation to use alcohol/drugs would have been predominantly to avoid the discomfort associated with cravings and withdrawal symptoms. Mr Waqavakatoga disclosed often being under the influence of alcohol/drugs whilst offending. I suspect that his alcohol/drug intoxication would have destabilised his careful decision making prior to offending. At assessment, his stimulant use disorder appeared to be in early remission, whereas his other substance use disorders appeared to be in sustained remission. I note that he is in detention which makes access to alcohol/drugs difficult.
[82] His PTSD causes him to struggle with controlling and expressing difficult emotions including anger, such that his motivation to engage in violence would have stemmed from emotional release and a need for retribution (owing to his perceived mistreatment). His low self-esteem (owing to his PTSD), lack of insight (regarding the link between his risk factors and offending), and lack of anxiety (owing to his antisocial personality style) would have reduced his perceived risk of engaging in criminal behaviour, increasing the likelihood of him engaging in criminal acts (especially in his adolescence and young adulthood).
[83] At assessment, Mr Waqavakatoga’s insight was emerging. He understood which factors increased the likelihood of him engaging in crime (e.g., associating with procriminal associates and friends) and which factors were protective against crime (e.g., maintaining full-time employment).
[84] His prognosis regarding his PTSD is fair. This means that Mr Waqavakatoga might have some response to treatment, but his condition will have a notable impact on his life and ability to function. He has lived most of his life with PTSD which developed in childhood. Further, he already appears to have completed an anger management program (although it is not clear what this program involved). Still, he appears to be interested in and motivated to engage in treatment, and his insight regarding his trauma and problematic attempts at controlling his trauma is emerging. His prognosis regarding his alcohol and substance use disorders is good. This means that Mr Waqavakatoga has a good chance of responding well to treatment and having a positive quality of life. He denied experiencing active cravings at assessment to use alcohol, cannabis, or ICE. He stated that he had managed his opioid cravings without problem over the past three-years using methadone.
[85] I suspect that if Mr Waqavakatoga is deported to Fiji, then his prognoses regarding these conditions will worsen. There was no indication that his partner, his core emotional support, was planning on relocating to Fiji if Mr Waqavakatoga were to be deported. Further, his other family members appear to reside in Australia. In the absence of his partner, close anticriminal friends, employment, church, and recreational activities, he might be at risk of relapsing on alcohol to cope. Further, mental health services in Fiji appear to be limited ( meaning that he may not have access to the psychological or psychiatric treatment needed to manage his PTSD (and potential alcohol dependence).
[86] A detailed description regarding his risk of re-offending is outlined in his Level of Service/Case Management Inventory (LS/CMI) section. I believe that Mr Waqavakatoga’s risk can be managed within the community; however, the recommendations outlined below must be adhered to closely. At assessment, there was no indication that Mr Waqavakatoga was at risk of engaging in imminent offending, or offending involving severe psychological or bodily harm. He did not appear to be using illicit substances, psychotic, or experiencing obsessive or perseverative thoughts tied to offending.
[87] Limitations of the present report include the lack of psychometric testing. Diagnostic confidence is enhanced when psychometric testing is combined with clinical interview. Further, there were some inconsistencies regarding Mr Waqavakatoga’s self-report. For example, he stated that that he started using heroin following a workplace injury; however, upon further investigation, his heroin use appeared to commence years before the workplace injury.
RECOMMENDATIONS
[88] Monitoring:
a. Mr Waqavakatoga to undergo routine toxicology up to 12-months to screen for the presence of illicit substances, namely methylamphetamine (ICE).
b. His treating psychologist to monitor for early warning signs that his risk might be increasing. This is needed to ensure that his intervention/case management plan can be updated accordingly. Early warning signs might include Mr Waqavakatoga reporting financial stress, interpersonal difficulties, workplace problems, and disengagement from pro-social recreational activities.
c. Low frequency, randomised home visits by correctional/police to maintain Mr Waqavakatoga’s perception that his behaviour is monitored, or that there is an ongoing risk associated with offending.
d. Mr Waqavakatoga’s treating psychologist to report to the court in the event that Mr Waqavakatoga does not attend treatment or engage in treatment in a meaningful manner.
e. Mr Waqavakatoga’s LS/CMI risk assessment to be recompleted after approx. 12 months.
[89] Assessment/treatment:
a. Mr Waqavakatoga to undergo assessment for attention-deficit/hyperactivity disorder (ADHD). This involves collateral interview (with Mr Waqavakatoga’s mother and partner), psychometric testing, and neuropsychological evaluation.
b. Mr Waqavakatoga to obtain a referral from his general practitioner, to consult a psychiatrist to determine whether he would benefit from medication management, in particular, in managing his irritability/anger. He might require time to be stabilised on medication prior to engaging in psychological treatment.
c. Mr Waqavakatoga to attend narcotics anonymous (NA) meetings on a monthly basis.
d. If possible, Mr Waqavakatoga’s general practitioner/ addiction specialist to support his transition from daily methadone to depot opioid maintenance treatment.
e. Mr Waqavakatoga to be supported by his legal team in addressing his ongoing difficulties regarding his visa status.
f. Mr Waqavakatoga to engage in psychological treatment on an ongoing fortnightly basis. His sessions would ideally be conducted via face-to-face appointment. If this is not possible, then audio-visual-link would suffice. I do not believe that telehealth appointment would be suitable. His goals for treatment should involve improved management of:
d.1. Anger. Strategies and techniques to achieve this goal include psychoeducation involving anger and the flight/fight response, emotion regulation, assertive communication training with video recording for corrective feedback and role play, grounding exercises, and building an anger management plan. Extensive practicing of these skills is required (approx. 6-8 sessions are indicated).
d.2. Posttraumatic stress disorder. Strategies and techniques to achieve this goal include psychoeducation regarding PTSD, stabilisation techniques (including applied relaxation training and grounding exercises), functional analysis to help him understand the link between his triggers, thoughts, feelings, sensations, and behaviours within the context of trauma, in-vivio exposure and imaginal exposure to allow for desensitisation to internal/external trauma triggers, and cognitive restructuring to correct for distorted thinking regarding his perception of himself and others (approx. 16-20 sessions are indicated).
c.3. Self-esteem. Strategies and techniques to achieve this goal include functional analysis to help him understand the link between his triggers, thoughts, feelings, sensations, and behaviours within the context of low self-esteem, and cognitive restructuring exercises to challenge negative thinking which is perpetuating his low self-esteem (approx. 6 sessions are indicated)
c.4. Substance misuse. Strategies and techniques to achieve this goal include lapse/relapse prevention management planning (approx. 2-3 sessions are indicated).
c.5. Pro-criminal attitudes. Strategies and techniques to achieve this goal include psychoeducation addressing how procriminal attitudes maintain offending, and cognitive restructuring to challenge Mr Waqavakatoga’s feelings of indignation regarding his most recent offending (approx. 1-3 sessions are indicated).
[90] Supervision:
a. Court mandated that Mr Waqavakatoga is not to associate with former procriminal associates and friends. His treating psychologist should work with Mr Waqavakatoga to develop his assertive communication skills to help him maintain distance in the event his former associates/friends try to re-establish contact with him.”[79]
[79] Exhibit 6, Psychological Assessment Report by Mr Mitchell John McLean (dated 24.01.2024), 4-13.

If the Applicant were to reoffend, the potential harm to the community is significant. The Australian Community tolerance of violent crime, in particular, is very low.
Likelihood of engaging in further criminal or other serious conduct
The Applicant’s long history of substance abuse is very concerning. He claims to have been abstinent for several years though he continues to take methadone to manage his opiate addiction. His recent self-reported history of abstinence has occurred in the context of intensive supervision in a controlled environment. This is vastly different to the situation that he would find himself in if he were to be released into the community. He has a long history of resorting to substance abuse to manage the stresses of living. Mr McLean was very clear that the Applicant needs intensive community-based management in place if he is to be released. The Applicant has no history of engagement with such intensive community-based services as have been recommended. Indeed, he has refused to even engage with psychological services prior to seeing Mr McLean. The risk of the Applicant returning to substance abuse, if released, is presently unmanaged by any concrete plans. In my view, based on his history, the risk of returning to substance abuse is high. The likelihood of him reoffending if he resumes substance abuse, in my view, is also high.
Having regard to the factors set out above and to the Applicant’s diverse and entrenched criminal history, the prospect of him reoffending if returned to the community is high. His assurances, especially in the absence of concrete post-release treatment plans, carry little weight.
An assessment of the harm that may flow to the community if he were to continue to offend, is potentially very serious. The community tolerance of such conduct is very low. Even a small risk of repetition, is an unacceptable risk.
Conclusion: Primary Consideration 1
Primary consideration number one weighs very heavily against revocation of the Applicant’s visa cancellation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
This is discussed in detail above. For the reasons set out above I only give this minimal weight.
Conclusion: Primary Consideration 2
This consideration is weighs minimally against revocation.
PRIMARY CONSIDERATION 3: TIES TO AUSTRALIA
Paragraph 8.3 of the Direction provides:
1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
i)considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii)more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii)less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
The Applicant’s mother and stepfather live in Australia. His relationship with his stepfather has at times been complex and strained. His mother has provided a letter of support which says that the Applicant supports her financially. She would no doubt be distressed if he were to be deported.
As already stated, there is no compelling independent evidence of long-term stable employment. The prospect of the Applicant being a stable financial supporter of his mother must be treated with caution.
The Applicant has identified various other relatives and connections in Australia. He said they would be distressed if he were to be removed from Australia.[84] I accept that this is so.
[84] Exhibit 3, G-Documents, Attachment G, 122.
The Applicant has been in a relationship with C.B since about 2019. He says that they plan to marry. She has offered a statement of support as set out above. C.B is unemployed, lives in public housing and is on benefits. The Applicant say that she has mental health issues and that she needs his emotional and financial support. As previously mentioned, his capacity to provide stable financial support is questionable. Also, as has already been discussed, this relationship is nowhere near as simple as their respective statements would suggest.
The evidence is that there is an AVO in force to protect C.B from the Applicant. This is presently set to expire on 25 November 2024. This AVO was in place before the Applicant’s revocation request was made on 15 March 2023 and before C.B’s statement of support made on 28 March 2023.
The Applicant claims to have a close relationship with C.B’s sons, Child A and Child B. This claim is also unsupported by any reliable independent evidence before the Tribunal.
The Applicant has spent most of his life since the age of 11 in Australia. He has spent some of his formative years here. He spent over 40 months in aggregate, in Fiji between 1999 and 2017.
He claims that he feels that Australia is his home, however he referred to Fiji as “home” in an unguarded moment during his evidence.
The Applicant has worked in various unskilled jobs since leaving school during year 10. There is limited independent evidence of continuous employment other than for the last few years. I have little confidence in the Applicant’s uncorroborated, general employment claims.
The Applicant has been involved with his local church and says that he has performed volunteer work for the Salvation Army and other charitable organisations.
Having regard to the Applicant’s extensive criminal history, his overall contribution to the Australian community has been negative.
Conclusion: Primary Consideration 3
This consideration, taken at its highest from the Applicant’s perspective, weighs slightly in favour of revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
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;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
C.B has two sons aged 14 and 17. She says that they are very close to the Applicant.[85] The Applicant mentioned this in passing to Mr McLean. He told the Tribunal that “I love them like my own”.
[85] Exhibit 5, Ms C.B’s Letter (undated).
There is only a very brief mention of these boys in C.B’s support letter.[86] The Applicant did not mention about his relationship with C.B’s children in his statements, his SOFIC[87] or in his statement of circumstances.
[86] Exhibit 5, Ms C.B’s Letter (undated).
[87] Statement of Facts, Issues and Contentions (‘SOFIC’).
He did give evidence about them. Much of this has already been discussed.
In summary, the Applicant’s only connection to Child A and Child B is through C.B. The current status of his relationship with C.B is unclear for the reasons discussed above. C.B’s relationship with the boys is limited to a supervised access visit, for 1 hour each fortnight. The Applicant does not accompany her.
In the context of all the materials provided by the Applicant, this claim appears to be an afterthought. I reject the Applicant’s assertions of a deep connection with the two boys, with whom he has had very limited contact.
This claim is without substance.
Conclusion: Primary Consideration 4
Having regard to all of the above, I give Primary Consideration 4 no weight.
PRIMARY CONSIDERATION 5 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[88]
[88] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Analysis – Allocation of Weight to this Primary Consideration 5
Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
a)the Applicant’s criminal record as set out in Annexure B.
b)family violence as discussed above.
c)the other matters set out above.
The Applicant has been a serial offender, having committed a range of offences. His behaviour has been totally contrary to the expectations of the Australian community as articulated in the Direction. I give minimal weight to family violence in coming to this conclusion, for the reasons set out above.
Conclusion: Primary Consideration 5
Primary consideration 5 weighs heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
(a) Legal consequence of the decision:
This consideration is not raised in this matter and is therefore neutral.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)    the non-citizen’s age and health;
b)    whether there are any substantial language or cultural barriers; and
c)    any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is aged 36. He has a history of mental health issues including PTSD, anxiety and long-term drug/alcohol abuse. This is discussed in detail in Mr McLean’s report. He has been having some medical treatment for this. Until his phone interview with Mr McLean, he had refused any psychological treatment or support.
According to Mr McLean, his mental health would suffer if he were to return to Fiji. I accept that this is so. Given Mr McLean’s recommendations, he should be supported in whatever community he may find himself. The Applicant would have to re-establish himself in Fiji. His drug addictions and methadone treatment may be hard to manage there. He may find it hard to get appropriate treatment services, should he seek to engage with them.
He would, in this regard, be in the same position as any other Fijian national.
His biological father has passed away in 2008. The Applicant says that he has no family or social support in Fiji. This claim is patently false, as discussed above. I do not accept that he would be without any family or social support in Fiji.
Nevertheless, bearing in mind the poorer health services likely to be available to him in Fiji, I accept that his mental health and substance abuse issues may become worse if he were to return to Fiji.
The Applicant has returned to Fiji on many occasions. He lived there until he was 11. English is an official language in Fiji. I accept that he would suffer some initial difficulties in reintegrating himself into Fijian society.
The Applicant would initially struggle. It may take him some time to secure reasonable accommodation and employment. His skills such as they are, should be adaptable to work in Fiji.

I accept that the Applicant would suffer emotional distress in being separated from his family, C.B and his other connections in Australia. They could however maintain contact via electronic means, and they could possibly visit him, finances permitting.
This consideration weighs in favour of revocation.
(c) Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence on this Other Consideration.
This Other Consideration (c) is neutral.
(d) Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence to suggest that the Applicant’s removal would “significantly compromise the delivery of a major project, or delivery of an important service in Australia”.
This Other Consideration (d), paragraph 9.4 of the Direction, is neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequence of decision under s 501 or s 501CA is neutral.
(b)extent of impediments if removed: weighs in favour of revocation.
(c)impact on victims is neutral.
(d)the impact on Australian business interests is neutral.
CONCLUSION
It is necessary to weigh up all of the primary and other considerations.
Primary consideration 1 weighs heavily against revocation.
Primary consideration 2 weighs slightly against revocation.
Primary consideration 3 weighs slightly in favour of revocation.
Primary consideration 4 is neutral.
Primary consideration 5 weighs heavily against revocation.
The Applicant has been a serial offender for all of his adult life. He was a juvenile offender as well. He has completely failed to demonstrate the conduct required of a resident non-citizen, as articulated in the Direction.
He has been given judicial warnings about the consequences of reoffending. He has ignored them. He has been encouraged, without success, to engage with psychological rehabilitation services. He has been indulged with non-custodial sentences/ supervision. He has continued to reoffend.
Based on his record, the risk of him reoffending is high. The potential damage that may flow, especially from his demonstrated violent inclinations, is extremely serious. The community has little tolerance of violent offending. This is especially so as his violent offending has been repeated, not an isolated departure from the norm. His chronic drug and alcohol abuse magnifies this concern.
The Applicant’s protestations that he has “changed” carry little, if any, weight. For the reasons set out above, the Applicant is a most unreliable witness. He is a mature serial offender aged 36 years, not a genuinely remorseful adolescent experiencing an epiphany. He has no concrete plans to ensure that he engages with the necessary and appropriate rehabilitation services recommended by Mr McLean, if released into the community. He says that he will work, but will he engage in yet another unprovoked, or disproportionate violent outburst? He has offended in a work context in the past. This offending occurred when he was apparently unaffected by drugs or alcohol.
Primary considerations 1 and 5 weight very heavily against revocation. To be clear, even if the Applicant’s juvenile record were to be ignored, this would not change the overwhelming relative weight given to these Primary Considerations. For the reasons set out above, I give little weight to Primary Consideration 2. The question is whether these Primary Considerations are counterbalanced by Primary Consideration 3 and Other Consideration (b).
In the Applicant’s favour, he has mostly lived here since he was 11 years old. He has family, C.B and other connections here. He would undoubtedly face significant practical, financial and emotional difficulties if he returned to Fiji. His mental health and substance abuse issues may deteriorate. His mother and possibly others, such as C.B, may understandably be distressed financially and emotionally by his removal.
This must be weighed against his appalling conduct as a serial offender, and the very real risk of harm that he presents to law abiding Australians. He has been a burden on this country’s criminal justice system for virtually all of his adult life. His positive contributions are insignificant when weighed in the balance. The weight, particularly of Primary Considerations 1 and 5 are so great, that they manifestly overwhelm any and all Primary and Other Considerations favouring revocation.
In my view, the proper application of the Direction strongly favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I find that there is not “another reason” pursuant to s 501CA(4)(b)(ii) to revoke the original decision.
DECISION
The decision under review is affirmed.

I certify that the preceding two-hundred and nineteen (219) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon. J Rau SC.

............................[sgnd].................................
Associate

Dated: 26 February 2024

Date of hearing: 19 February 2024

Advocate for the Applicant:

Suzette Pereira
(Brydens Lawyers)

Advocate for the Respondent:
Grace Mickle
(Minter Ellison)

ANNEXURE A – LIST OF EXHIBITS

Exhibit no.

Lodged by

Document

1

Applicant

Statement of Facts, Issues and Contentions

2

Respondent

Statement of Facts, Issues and Contentions

3

Respondent

G-Documents

4

Applicant

Mr Waqavakatoga’s Statement (dated 26.01.2024)

5

Applicant

Miss C.B Support Letter (undated)

6

Applicant

Psychological Assessment Report by Mr Mitchell John McLean (dated 24.01.2024)

ANNEXURE B – APPLICANT’S OFFENDING HISTORY

Court	Court Date	Offence	Court Result
NSW SUTHERLAND LOCAL COURT	04/07/2023	Drive motor vehicle during disqualification period - 2nd+off	Conviction With No Other Penalty: Disqualification - Driver: 6 Months Commencing 04/07/2023
NSW SUTHERLAND LOCAL COURT	04/07/2023	Not give particulars to owner of damaged property	Conviction With No Other Penalty
NSW SUTHERLAND LOCAL COURT	24/03/2023	Driver or rider state false name or home address	Conviction With No Other Penalty
NSW SUTHERLAND LOCAL COURT	21/03/2023	Drive motor vehicle during disqualification period - 2nd+off	Imprisonment: 3 Months Commencing 15/03/2023 Concluding 14/06/2023 Disqualification - Driver: 12 Months Commencing 31/01/2024
NSW SUTHERLAND LOCAL COURT	21/02/2023	Drive motor vehicle during disqualification period - 2nd+off	Convicted Warrant To Issue
NSW SUTHERLAND LOCAL COURT	24/01/2023	Driver or rider state false name or home address	Fine: $500
NSW MANLY LOCAL COURT	20/01/2023	Assault occasioning actual bodily harm	Imprisonment: 8 Months commencing 20/01/2023 Concluding 19/09/2023 Non-Parole Period: 5 Months Commencing 20/01/2023 Concluding 19/06/2023
NSW DOWNING CENTRE LOCAL COURT	03/08/2020	Drive vehicle, illicit drug present in blood etc – 2nd + off	FINE $550 Disqualification – Driver: 12 Months Commencing 03/08/2020
NSW CENTRAL LOCAL COURT	23/03/2020	Possess identity info to commit etc indictable offence	Intensive Correction Order (Aggregate): 15 Months Commencing 23/03/2020 Concluding 22/06/2021. Indicative: 2019/00139688-001 (001) 12months 2019/00139688-002 (002) 12 Months 2019/00139688-005 (005) 2 Months 2020/00081851-001 (001) 12 Months 2020/00081851-002 (002) 8 Months 2020/00081851-004(004) 4 Months 2020/00083128-003 (003) 8 Months 2020/00083128-002 (002) 8 Months 2020/00083128-001 (001) 3 Months. Supervision :15 Months Commencing 23/03/2020 Concluding 22/06/2021 Supervised By Community Corrections Service Treatment Programs: 15 Months Commencing 23/03/2020 Concluding 22/06/2021 Drug Rehabilitation
NSW CENTRAL LOCAL COURT	23/03/2020	Fail to appear in accordance with bail acknowledgment	As above
NSW CENTRAL LOCAL COURT	23/03/2020	Deal with property proceeds of crime < $100,000	As above
NSW CENTRAL LOCAL COURT	23/03/2020	Fail to appear in accordance with bail acknowledgment	Conviction With No Other Penalty
NSW CENTRAL LOCAL COURT	23/03/2020	Use class A vehicle displaying misleading etc number-plate	Conviction With No Other Penalty
NSW CENTRAL LOCAL COURT	23/03/2020	Drive conveyance taken w/o consent of owner	Intensive Correction Order (Aggregate): 15 Months Commencing 23/03/2020 Concluding 22/06/2021. Indicative: 2019/00139688-001(001) 12months 2019/00139688-002 (002) 12 Months 2019/00139688-005 (005) 2 Months 2020/00081851-001 (001) 12 Months 2020/00081851-002 (002) 8 Months 2020/00081851-004(004) 4 Months 2020/00083128-003 (003) 8 Months 2020/00083128-002 (002) 8 Months 2020/00083128-001 (001) 3 Months. Supervision :15 Months Commencing 23/03/2020 Concluding 22/06/2021 Supervised By Community Corrections Service Treatment Programs: 15 Months Commencing 23/03/2020 Concluding 22/06/2021 Drug Rehabilitation
NSW CENTRAL LOCAL COURT	23/03/2020	Goods in personal custody suspected being stolen (not m/v)	As above
NSW CENTRAL LOCAL COURT	23/03/2020	Drive motor vehicle during disqualification period - 2nd+off	As above
NSW CENTRAL LOCAL COURT	23/03/2020	Resist officer in execution of duty-T2	As above
NSW CENTRAL LOCAL COURT	23/03/2020	Possess prohibited drug	As above
NSW CENTRAL LOCAL COURT	23/03/2020	Escape police custody-T1	As above
NSW CENTRAL LOCAL COURT	23/03/2020	Enter/leave restricted area not process ticket - adult	Fine: $200
NSW CENTRAL LOCAL COURT	23/03/2020	State false name or address	Fine: $200
NSW DOWNING CEMTRE LOCAL COURT	11/09/2019	Drive vehicle, illicit drug present in blood etc - 1st off	Fine: $750 Disqualification - Driver: 6 Months Commencing 11/09/2019
NSW DOWNING CEMTRE LOCAL COURT	25/07/2019	Used uninsured motor vehicle	Fine: $686
NSW DOWNING CEMTRE LOCAL COURT	25/07/2019	Drive motor vehicle during disqualification period – 1st off	Fine: $500 Disqualification - Driver: 6 Months Commencing 25/07/2019
NSW DOWNING CEMTRE LOCAL COURT	25/07/2019	Use unregistered registrable Class A motor vehicle on road	Fine: $686
NSW DOWNING CEMTRE LOCAL COURT	13/12/2017	Affray-T1	Intensive Correction Order: 8 Months Commencing 13/12/2017 Concluding 12/08/2018
NSW ALBURY DISTRICT COURT	09/04/2013	Agg B&E & commit serious indictable offence-in company-SI	Imprisonment: 2 Years Commencing 03/08/2012 Concluding 02/08/2014 Non-Parole Period With Conditions: 12 Months Commencing 03/08/2012 Concluding 02/08/2013 Release Subject To Supv Compensation: $704 Court Case Reference Num Ber 2012/143762
NSW ALBURY DISTRICT COURT	19/06/2012	Assault occasioning actual bodily harm-T2	Imprisonment: 16 Months Commencing 03/05/2012 Concluding 02/09/2013. Non Parole Period With Conditions: 6 Months Commencing 03/05/2012 Concluding 02/11/2012 Release Subject To Supv To Be Of Good Behaviour. To Accept The Supervision & Guidance Of The Community Offenders Service & Community Compliance & Monitoring Group For Such Period As Those Services Considers Necessary. To Comply With All Their Reasonable Directions Including Immediate Access To Any Computer In Their Possession, Counselling & Treatment Regarding Education, Drug & Alcohol Rehabilitation, Anger Management Drug Or Alcohol Testing, Place Of Residence (Including Attendance & Successful Completion Of Any Full Time Residential Program), Curfew, Non association With Nominated Persons Or Any Other Area Of Criminogenic Behaviour Identified As Requiring Attention. Further to Report to Community Offenders Service As & When Directed by Community Offenders Service Or Community Compliance & Monitoring Group. Not To Assault, Molest, Harass or Intimidate the Victim &, Or Not To Telephone Or Contact The Victim Nor Approach Within 50 Metres Of The Victim (Sdc 71609).
NSW SUTHERLAND LOCAL COURT	23/09/2010	Common assault-T2	Imprisonment: 9 Months Commencing 09/08/2010 Concluding 08/05/2011
NSW SUTHERLAND LOCAL COURT	23/09/2010	Affray-T1	Imprisonment: 9 Months Commencing 09/08/2010 Concluding 08/05/2011
NSW SUTHERLAND LOCAL COURT	23/09/2010	Resist officer in execution of duty-T2	Imprisonment: 9 Months Commencing 09/08/2010 Concluding 08/05/2011
NSW SUTHERLAND LOCAL COURT	23/09/2010	Be carried in conveyance taken w/o consent of owner-T2	Imprisonment: 9 Months Commencing 09/08/2010 Concluding 08/05/2011
NSW SUTHERLAND LOCAL COURT	23/09/2010	Drive while disqualified from holding a licence	Imprisonment: 9 Months Commencing 09/08/2010 Disqualification: 2 Years Commencing 01/02/2017
NSW SUTHERLAND LOCAL COURT	23/09/2010	Goods in personal custody suspected being stolen (not m/v)	DISMISSED
NSW SUTHERLAND LOCAL COURT	23/09/2010	Enter inclosed land not presc premises w/o lawful excuse	Fine: $250 Costs - Court: $79
NSW SUTHERLAND LOCAL COURT	14/08/2009	Be carried in conveyance taken w/o consent of owner-T2	BOND: 12 MONTHS SUPV NSW PROB SERVICE
NSW SUTHERLAND LOCAL COURT	27/05/2009	Drive while disqualified from holding a licence	Periodic Detention : 12 Months Commencing 05/06/2009 Disqualification : 2 Years Commencing 31/01/2015
NSW SUTHERLAND LOCAL COURT	27/05/2009	Common assault-T2	Bond : 2 Years A) To Accept Probation And Parole Supervision For As Long As Considered Necessary, Obey All Reasonable Directions For Counselling, Educational Development And Alcohol Rehabilitation And Report To The Probation Office With 2 Days.
NSW SUTHERLAND LOCAL COURT	27/05/2009	Affray-T1	As above
NSW SUTHERLAND LOCAL COURT	27/05/2009	Resist officer in execution of duty-T2	As above
NSW SUTHERLAND LOCAL COURT	27/05/2009	Drive while disqualified from holding a licence	Periodic Detention: 12 Months Commencing 05/06/2009 Disqualification: 2 Years Commencing 31/01/2009
NSW SUTHERLAND LOCAL COURT	27/05/2009	Drive while disqualified from holding a licence	Periodic Detention: 12 Months Commencing 05/06/2009 Disqualification: 2 Years Commencing 31/01/2011
NSW SUTHERLAND LOCAL COURT	27/05/2009	Drive while disqualified from holding a licence	Periodic Detention: 12 Months Commencing 05/06/2009 Disqualification: 2 Years Commencing 31/01/2013
NSW SUTHERLAND LOCAL COURT	12/02/2009	Not pay train fare and hold valid ticket	Conviction With No Other Penalty
NSW SUTHERLAND LOCAL COURT	21/01/2009	Not reverse vehicle safely	FINE: $200
NSW SUTHERLAND LOCAL COURT	21/01/2009	Drive while disqualified from holding a licence	Community Service Order: 100 Hours Costs - Court: $73 Disqualification: 2 Years Commencing 31/01/2009 Concluding 30/01/2011 Disqualification (Habitual Offender): Quashed
NSW SUTHERLAND LOCAL COURT	21/01/2009	Drive while disqualified from holding a licence	Community Service Order: 100 Hours Cumulative Costs - Court: $73 Disqualification: 2 Years Commencing 31/01/2011 Concluding31/01/2013 Disqualification (Habitual Offender): Quashed
NSW SUTHERLAND LOCAL COURT	21/01/2009	Drive while disqualified from holding a licence	Community Service Order: 200 Hours Costs - Court: $73 Disqualification: 2 Years Commencing 31/01/2013 Concluding 30/01/2015 Disqualification (Habitual Offender): Quashed
NSW SUTHERLAND LOCAL COURT	21/01/2009	Destroy or damage property	Fine: $200 Costs - Court: $73 Bond: 12 Months to Accept Probation Service Supervision For As Long As Considered Necessary, Obey All Reasonable Directions For Counselling, Educational Development Or Drug And Alcohol Rehabilitation And Report To The Probation Office Within 7 Days.
NSW SUTHERLAND LOCAL COURT	21/01/2009	Destroy or damage property ≤ $2000- T2	As above
VIC ROBINVALE MAGISTRATES COURT	23/10/2007	Burglary (2 Charges) Theft (2 Charges) Criminal Damage (Intent Damage/Destroy)	Without Conviction, A Community Based Order For 12 Months. All Core Community Based Order Conditions to Apply.
NSW CAMPBELLTOWN LOCAL COURT	31/01/2007	Drive vehicle recklessly/furiously or speed/manner dangerous	Bond: 2 Years Costs - Court: $67 Disqualification: 2 Years Commencing 31/01/2007
NSW CAMPBELLTOWN LOCAL COURT	31/01/2007	Learner not accompanied by driver/ police officer/tester	Fine: $50
NSW CAMPBELLTOWN LOCAL COURT	31/01/2007	Fail to display "L" on car as required	Fine: $50
NSW CAMPBELLTOWN LOCAL COURT	31/01/2007	Not stop at stop line at red light (not toll booth)-m/v	Fine: $50
NWS LOCAL COURT SUTHERLAND CHILDRENS COURT	12/10/2005	Possess prohibited drug	Bond: 12 Months
NWS LOCAL COURT SUTHERLAND CHILDRENS COURT	12/10/2005	Common assault-T2	Bond: 12 Months
NWS LOCAL COURT SUTHERLAND CHILDRENS COURT	12/10/2005	Destroy or damage property ≤ $2000 - T2	Bond: 12 Months
NSW BIDURA CHILDRENS COURT	08/08/2005	Larceny value ≤ $2000 - T2	Control Order: 3 Months sentence Suspended with Cond: 3 Months to Be of Good Behaviour Attend All Programs Courses And Counselling As Directed By Juvenile Justice Service
NSW BIDURA CHILDRENS COURT	08/08/2005	Maliciously wound -T1	Control Order: 9 Months Sentence Suspended with Cond: 9 Months Supv Juvenile Justice A) Dept Of Juvenile Justice Supervision For Such Time As Deemed Necessary. B) Attend All Programmes, Course and Counselling As Directed By JJSC.
NWS LOCAL COURT SUTHERLAND CHILDRENS COURT	27/10/2004	Receive/dispose stolen property-min. indict. off. ≤ $5000 -T2	Bond: 12 Months Supv Juvenile Justice Counselling As Directed
NWS LOCAL COURT SUTHERLAND CHILDRENS COURT	27/10/2004	Assault occasioning actual bodily harm -T2	Bond: 12 Months Supv Ordered Counselling As Directed By Juvenile Justice Service

[2024] AATA 264

26 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Date of hearing:	19 February 2024
Advocate for the Applicant:	Suzette Pereira (Brydens Lawyers)
Advocate for the Respondent:	Grace Mickle (Minter Ellison)

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions
2	Respondent	Statement of Facts, Issues and Contentions
3	Respondent	G-Documents
4	Applicant	Mr Waqavakatoga’s Statement (dated 26.01.2024)
5	Applicant	Miss C.B Support Letter (undated)
6	Applicant	Psychological Assessment Report by Mr Mitchell John McLean (dated 24.01.2024)