Zoing and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 882

Zoing and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 882 (14 April 2021)
Division:GENERAL DIVISION
File Number(s):2019/8421
Re:Mr Wayne Joseph Nesta Mucunabitu Zoing
APPLICANT

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

Tribunal:Senior Member B. Pola
Date:14 April 2021
Place:Brisbane

DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
..................................[SGD]......................................
Senior Member B.Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 79 – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
TBNM and Minister for Home Affairs (Migration) [2019] AATA 850
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
14 April 2021
INTRODUCTION AND BACKGROUND

The Applicant, Mr Wayne Joseph Nesta Mucunabitu Zoing, is a 23 year old citizen of New Zealand. Movement records indicate the Applicant was first granted a Class TY Subclass 444 Special Category (Temporary) visa (herein referred to as ‘Visa’ in these reasons) on arrival into Australia on 9 February 2013[1].
[1] Exhibit G1, page 69.
The Applicant was born in Fiji, and following the separation of his parents, moved to New Zealand with his father, and resided with his paternal grandfather (initially) and his paternal grandfather’s partner, from around nine years of age. The Applicant remained in New Zealand until he migrated to Australia with is paternal grandfather in early 2013, just prior to turning 16 years of age[2].
[2] Transcript, 11 March 2021, pages 10 to 12.
The Applicant’s criminal record began soon after migrating to Australia with his first offence recorded in November 2016. In total the Applicant had eight appearances before lawful authority, for 18 offences between 2016 and 2019, half of which came with custodial sentences. The convicted offences of the Applicant included violent offences such as common assault (Domestic Violence), contravention of Apprehended Violence Orders (“AVO”) Domestic, stalk/intimidate intend fear physical etc harm (personal), property and drug related offending, and traffic offences.
On 15 April 2019, the Applicant was convicted of common assault (DV), contravene prohibition/restriction in AVO (Domestic), and stalk/intimidate intend fear physical etc harm (domestic), each of which came with a sentence of imprisonment of 16 months served concurrently (the Tribunal observes the Applicant was convicted of other offences at this appearance).
Whilst serving a term of imprisonment, a delegate of the Minister (or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 12 June 2019 to mandatorily cancel the Applicant’s Visa (or the ‘Visa Cancellation Decision’) on the basis that he did not pass the character test pursuant to s501(6) of the Migration Act [3].
[3] Exhibit G1, page 17.
Following the Visa Cancellation Decision, the Applicant made submissions to the Respondent[4].
[4] Exhibit G1, pages 47 to 68.
On 9 December 2019, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act (which was hand delivered to the Applicant on 10 December 2019)[5].
[5] Exhibit G1, pages 17 to 32.
The Applicant lodged an application with the Administrative Appeals Tribunal (or the ‘Tribunal’) on 18 December 2019 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[6].
[6] Exhibit G1, pages 12 to 16. For the Tribunal to have jurisdiction to review the decision, the Applicant must
also have lodged the application for review with the Tribunal within nine days after the day on which he or
she received notification of the decision, per s500(6B) of the Migration Act.
On 3 March 2020 the Tribunal affirmed the Minister’s delegate’s decision not to revoke the cancellation of the Applicant’s Visa[7].
[7] Exhibit G1, pages 184 to 198.
The Applicant lodged a challenge to the Tribunal’s decision of 3 March 2020 with the Federal Court. On 19 August 2020, His Honour Justice Jagot of the Federal Court, made orders quashing the decision of the Tribunal on 3 March 2020, and directed the Tribunal to determine the Applicant’s application in accordance with law. These orders were made on the basis that[8]:
[8] Exhibit G1, pages 199 and 200.
“6.The Minister concedes that the Tribunal:
6.1 breached s500(6H) of the Act when it had regard to the oral evidence of [redacted – Ms F] and Max Zoing, where the information was not set out in a written statement given to the Minister at least 2 business days before the Tribunal held its hearing in relation to the decision under review; and
6.2 breached s500(6J) of the Act when it had regard to the written statements of each of [name redacted, Ms F] and Max Zoing, where their statements were not given to the Minister at least 2 business days before the Tribunal held its hearing in relation to the decision under review.
7. The Tribunal’s breach of s500(6H) in relation to the oral evidence of [redacted, Ms F] was in part adverse to the applicant and was treated as such by the Tribunal in its reasons, see in particular [26], [40]-[41], [48] of its reasons, and page 178 of the transcript which Annexure HDD-1 of the affidavit of Hervee Dejean affirmed on 5 August 2020.”
[Tribunal redaction]
The application was heard in Brisbane over two days on, 11 and 17 March 2021, with the Applicant represented by Ms Bachour-Choucair of Jameson Law. The Respondent was represented by Mr Eteuati from the Australian Government Solicitor. All parties appeared by video link. In addition to oral evidence at the hearing, the Tribunal relies on submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
At the hearing, the Tribunal heard evidence from witnesses called by the Applicant:
(i)Mr Max Zoing (the Applicant’s paternal grandfather), who provided statements in support of the Applicant remaining in Australia[9]; and
(ii)Ms Alena Kaitani (the partner of Mr Max Zoing), who also provided a statement in support of the Applicant[10].
[9] Exhibit A1; Exhibit A4; and Exhibit G1, G1, page 10.
[10] Exhibit A5.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
As previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[11]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[11] Exhibit G1, G6, pages 55 to 57; Exhibit G1, G7, pages 54 to 68.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[12]:
“…there has been some discussion in the authorities as to whether s501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[13].
[Tribunal underline for emphasis]
[12] [2018] FCAFC 151.
[13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked[14].
[14] Ibid.
Does the Applicant pass the character test?
As previously outlined in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” as per s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Tribunal refers to the Applicant’s submissions where it is conceded that the Applicant does not satisfy the character test[15]:
“14. The Applicant concedes that pursuant to section 501(6)(a) of the Act, he does not pass the character test; that is by reason of his ‘substantial criminal record’, which is defined under section 501(7)(c) as (inter-alia), a person sentenced to a term of imprisonment of 12 months or more.”
[15] Exhibit A3, page 2, paragraph 14.
The Tribunal is satisfied that the Applicant does not pass the character test as a result of having been sentenced to a term of imprisonment of 12 months or more on 15 April 2019, for the conviction of common assault (DV), contravene prohibition/restriction in AVO, and stalk/intimidate intend fear physical etc harm (domestic), each of which came with a sentence of imprisonment of 16 months served concurrently[16].
[16] Exhibit G1, G3, pages 34 and 35 (repeated at Exhibit G1, G9, pages 82 and 83).
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
Is there another reason why the cancellation of the Applicant’s Visa should be revoked?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499 of the Migration Act, to comply with any directions made under the Migration Act.
In view of this, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (herein referred to as the “Direction”) must be applied[17]. The Direction outlines a framework for decision makers with respect to exercising discretion in accordance with s501CA of the Migration Act, it provides:
“(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”[18].
[17] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[18] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
Paragraph 8(4) of the Direction provides that, “Primary considerations should generally be given greater weight than the other considerations”, additionally, paragraph 8(5) of the Direction provides that, “One or more primary considerations may outweigh other primary considerations”.
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides that the three Primary Considerations the Tribunal must consider are:
a)Protection of the Australian community from criminal or other serious conduct (herein referred to as “Primary Consideration A”);
b)The best interests of minor children in Australia (herein referred to as “Primary Consideration B”); and
c)Expectations of the Australian community (herein referred to as “Primary Consideration C”).
The Other Considerations which must be taken into account are listed in paragraph 14 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims; and
e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision maker’s consideration. Briefly stated, they are as follows:
1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
The Tribunal will now turn to addressing the three Primary Considerations.
Primary Consideration A – Protection of the Australian community
In considering Primary Consideration A, paragraph 13.1(1) of the Direction, requires decision makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Paragraph 13.1(1) of the Direction provides that Australians confer on non-citizens expectations that they:
(i)are and have been law abiding;
(ii)will respect important institutions; and
(iii)will not cause or threaten harm to individuals or the Australian community.
When decisions makers are deciding whether the mandatory cancellation of an Applicant’s Visa serves to protect the Australian community, paragraph 13.1(1) of the Direction provides that the mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principles, and that remaining in Australia is a privilege conferred on non-citizens in this country.
Paragraph 13.1(2) of the Direction requires decision makers to give consideration to the following requirements when determining the weight to be applied to Primary Consideration A:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history, in addition to the submissions of the Applicant to the Respondent. The Applicant’s criminal offending history can also be gleaned from the s501 G-Documents[19] and within these documents, the Respondent’s Tender Bundle[20]:
(a)Transcript of evidence given in the previous Tribunal hearing dated 20 February 2020[21];
(b)The Applicant’s criminal history in Australia which appears in a document entitled, “Australian Criminal Intelligence Commission Check Results Report” dated 9 May 2019[22];
(c)International movement records of the Applicant from the Department of Home Affairs[23];
(d)Transcript of proceedings of their Honour Magistrate Boulos before the Local Court of Griffith on 14 March 2019[24];
(e)Transcript of proceedings of their Honour Magistrate Beattie before the Local Court of Goulburn on 15 April 2019[25];
(f)New South Wales Department of Corrective Services Conviction, Sentences and Appeals report of 11 June 2019[26]; and
(g)Extracts from summonsed documents from New South Wales Police of various dates[27].
[19] Exhibit G1.
[20] Exhibit G1, pages 134 to 183.
[21] Exhibit G1, G3, pages 205 to 422.
[22] Exhibit G1, G3, pages 38 to 40; and repeated at Exhibit G1, G9, pages 78 to 80.
[23] Exhibit G1, G8, pages 73 and 74.
[24] Exhibit G1, G4, pages 41 to 48; and repeated at Exhibit G1, G10, pages 93 to 100.
[25] Exhibit G1, G5, pages 49 and 50; and repeated at Exhibit G1, G10, pages 91 and 92.
[26] Exhibit G1, G9, pages 85 to 87.
[27] Exhibit G1, pages 135 to 183.
Overview of the Applicant’s criminal offending history
Before considering paragraphs 13.1, 13.1.1, and 13.1.2 as they apply to Primary Consideration A of the Direction, the Tribunal will first refer to the Applicant’s background in order to provide context for some of the Applicant’s offending, in addition to providing an overview of the Applicant’s criminal offending history.
After returning from an almost seven-month holiday in Fiji and New Zealand (August 2015 to April 2016), the Applicant relocated to Griffith to live where he returned to employment in a job he had prior to leaving[28].
[28] Transcript 11 March 2021, page 35, lines 22 to 40.
The Applicant gave evidence to the Tribunal that at some point during 2016, the Applicant had commenced a relationship with their now former partner whom the Tribunal will refer to as Ms F (at the time, the Applicant was around 19 years of age)[29]. In evidence during cross‑examination the Applicant stated to the Tribunal that the relationship had ended approximately six to seven months ago, the Tribunal refers to the following exchange[30]:
[29] Transcript 11 March 2021, page 36, lines 1 to 5.
[30] Transcript 17 March 2021, page 84, lines 40 to 45; page 85, lines 1 to 9.
“Respondent: … Now, are you and [redacted, Ms F] still in a relationship now?
Applicant:     No, we’re not.
Respondent: When did that stop?
Applicant:     Maybe six, seven - seven months ago, something like that.
Respondent: And why did that stop?
Applicant:     It was just a mutual thing. I told her that we weren’t good for each other and that, you know, it wouldn’t work out like between us, yes, and it took her - she took it hard but she understood that, you know, it’s best for us not to - to be in such a toxic relationship with each other, you know, because we already know how it’s going to end, you know.
Respondent: Well, what do you mean you know how it’s going to end? What do you mean by that?
Applicant:     Like just continuous arguing and like just not - not really going anywhere with the relationship.”
[Tribunal redactions]

This background with respect the Applicant’s relationship with his former partner Ms F provides context for much of the Applicant’s criminal offending history as many of the Applicant’s convictions centre around violence which has occurred in a domestic setting involving the Applicant’s former partner Ms F, and Ms F’s mother whom the Tribunal will refer to as Ms C.
At the hearing, the Applicant’s evidence could largely be summarised as either (1) denying the reported facts of the offences put to him; (2) offering an alternate version of events surrounding the offending; (3) or being unable to recall the facts of the offending.
With respect to whether or not the Tribunal is able to bring into question the underlying facts of prior convictions of the Applicant, the Tribunal observes that this has been considered on a number of occasions by judicial officers. The Tribunal refers to the Full Federal Court’s decision of HZCP v Minister for Immigration and Border Protection[31] (herein referred to as “HZCP”), where His Honour McKerracher J stated at paragraph 77:
““77. As a matter of policy, it would be highly undesirable if the Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based. To make a finding of “another reason” on facts necessarily inconsistent with the conviction and sentence would be an incongruous outcome. It has long been recognised that the adjudgment and punishment of criminal guilt is an exclusively judicial function: Waterside Workers’ Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434 per Griffiths CJ (at 444); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153 per Isaacs J (at 175); Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 per Mason CJ (at 258); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 per Brennan, Deane and Dawson JJ (at 27) and Re Woolley; Ex parte Applicants M276/2003 (by their next friend GS) (2004) 225 CLR 1 per McHugh J (at [53]).The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central conception of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.”
[Tribunal underline for emphasis]
[31] [2019] FCAFC 202.
The Tribunal further refers to the reasons of their Honour Colvin J in HZCP[32] with respect to administrative tribunals’ views on facts underlying criminal convictions[33]:
“The defence of criminal proceedings is a matter in which the accused person may be expected to have taken considerable interest. The prosecution must discharge a high burden of proof according to formal rules of evidence and by means of a procedure that is keenly attuned to ensuring a fair process for the accused. For those reasons, where before an administrative decision-maker reliance is placed upon the fact of a conviction or a sentence, great weight is to be afforded the factual findings that necessarily underpin the conviction or sentence especially where it is the criminal defendant who is inviting an administrative tribunal to reach a different view as to the facts...”
[Tribunal underline for emphasis]
[32] [2019] FCAFC 202.
[33] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 (at 165 [189]).
The Tribunal does not regard the Applicant as having discharged the substantial onus of challenging the facts of the convictions against him. The Tribunal gives significant weight to the Court’s consideration of the facts of the offences, and to the seriousness with which their Honours have regarded the offending of the Applicant.
The Tribunal will now outline the Applicant’s criminal offending history.
October - November 2016
The Tribunal refers to New South Wales (herein referred to as “NSW”) Police records with an entry on 19 October 2016 describing an incident involving the Applicant, his former partner Ms F, and Ms F’s mother Ms C, when police were called to the address of Ms C’s home[34]:
“About 9.00pm on Wednesday the 19th of October 2016 the PINOP, defendant and witness were all consuming fortified wine from a bottled flagon. At this time the victim states that the witness and the defendant began arguing over, the witness mentioning her ex boyfriend's name. This has caused the defendant to become angry as he walked outside of the location. Once outside the defendant has picked up a green coloured garden plastic chair, and thrown It against the brick house causing the chair to completely smash into pieces, therefore the PINOP contacted police who arrived a short time later. Once on scene at the [address redacted] location the victim informed police of the above incident, however tried to say to police initially that it was unknown offender who committed the damage. At this time the defendant appeared from outside of the house saying, "Nah police it was me who did it, don't cover for me." The victim went on to say "I ain't signing up for nothing, Its my property, so I don't give a fuck." Police introduced themselves to the defendant, cautioned him and questioned him in relation to the damage to the chair, to which he stated "yeh I did it, my Mrs and her mum were arguing over how they poured the drinks, I just couldn't understand why the fuck you would argue over that, it pissed me off, so I just lost It." Due to police concerns the defendant continue his violent behaviour, police conveyed the defendant back to Griffith Police Station, where police issued a direction on him to stay at the police station, for the purpose of serving a Domestic Apprehended Violence Order on the defendant.”
[sic, Tribunal redactions, and underline for emphasis]
[34] Exhibit G1, G1, page 180.
During cross-examination the Applicant stated that they had thrown the chair because they were agitated in the moment[35]. In a statement to the Tribunal, the Applicant recalled the incident[36]:
“October 2016 was the first time I got in trouble with the police. I was trying to stop an argument between [redacted – Ms F] and her mother [Ms C] and all of a sudden they started yelling at me. I walked away to begin with however this just caused it to increase. I then got frustrated because they kept aggravating me, so I walked outside, picked up a chair and threw it. [redacted - Ms C] called police immediately and the police attended and arrested me. I pleaded guilty to the offence.”
[Tribunal insertions for clarity]
[35] Transcript 11 March 2021, page 49, line 36.
[36] Exhibit A9, paragraph 78.
Although the Applicant stated they pled guilty to this offence, NSW Police records indicate that a Magistrate had refused to grant the application for a Provisional Order regarding the protection of Ms C and her daughter Ms F, from the Applicant[37].
[37] Exhibit G1, G1, page 180.
Following this incident a few days later on 24 October 2016, NSW Police records indicate there was another incident involving the Applicant, Ms F, and Ms C. NSW Police records state the following[38]:
“About 7.45pm on Monday the 24th of October 2016 the accused arrived home to the .................. location after being out with a friend. At this time ............. began arguing with the accused over him being out for most of the afternoon. The accused and ......... continued arguing for several minutes as they made they're way into their bedroom at the back of the ......... location. The victim walked to the back of house to tell the accused and ......... to stop arguing. At this time the victim states that she saw the accused push ........... , therefore the victim got In between the accused and ......... , to break up the fight. At this time the accused then began yelling and screaming at the victim telling her to "fuck off." The victim told to the accused to leave the house. As the accused began walking away from the bedroom and into the front living room to exit the house. Using both arms, the accused has punched the display shelf between the hallway and living room, completely destroying the glass shelving, and two wine glasses. The accused has then left the ......... location via the front floor. Police attended a short time later. Immediately on attendance police were noticed the accused sitting on the front porch of the ......... location. The victim said to police that the accused has smashed up the house, police observed the damaged within side the location. The accused looked at police and said "Its me, I've done it again." In compliance with safeguards under section 2002 of the Law Enforcement (Powers and Responsibilities) Act 202 police introduced themselves, cautioned and arrested the accused. Police asked ......... about the accused pushing her, however ............ said "He didn't touch." The accused was conveyed to Griffith Police Station where he was introduced to the custody manager who read him his rights under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002. The accused was offered the opportunity to participate In a interview regarding the allegation, however the accused declined. The accused Is now charged with the matter before the court.”
[sic, Tribunal underline for emphasis]
[38] Exhibit G1, G1, page 175.
When questioned as to whether the Applicant had pushed his former partner Ms F, the Applicant did not believe he had pushed her, and stated, “No, no. I don't think I pushed her. Maybe, I don't know, I was trying to get her off me or something but, no, I don't think I pushed her”[39].
[39] Transcript 11 March 2020, page 53, lines 4 to 6.
Again, in a statement to the Tribunal the Applicant recalled the incident[40]:
“Later in that month I was out with my friends in the afternoon and I got into a fight with [redacted, Ms F] when I arrived home as she was upset that I went out with my friends and spent too much time with them. The argument got heated and I stormed out of the room and broke a glass shelf and glasses in the living room.”
[40] Exhibit A9, paragraph 80.
NSW Police records indicate that the Applicant was arrested and charged for the offence, and they implemented a Protection Order for the protection of Ms C and her daughter Ms F. Although it is not entirely clear from the records which of the two incidents the Tribunal has outlined relates to the conviction in November 2016 (of destroy or damage property less than $2,000, for which the Applicant received a two-year good behaviour bond); during cross-examination the Applicant thought that the conviction related to the latter one involving him smashing the glass shelving on 24 October 2016[41].
January to May 2017
[41] Transcript 11 March 2016, page 54, lines 1 to 2.
A month later, on 24 January 2017, NSW Police records describe another incident involving the Applicant and Ms C[42]:
“The victim in this matter is a protected person in an enforceable Apprehended Domestic Violence Order (ADVO) in which the accused is named the defendant. The ADVO endorses Order Conditions 1a, 1b, 1c, and 11, being "The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s)." About 1830 hours on Tuesday 24 January 2017 the victim was at her home, being .................. , with her adult daughter. The accused had been absent and attended the location about 1830 hours. The victim's daughter began to argue with the accused. The victim requested the accused leave her house. The victim said "Wayne you gotta go. We did everything for you today." The accused and the victim had a verbal altercation on the front veranda. The accused and the victim began to push and shove each other. The accused pushed the victim with one hand to the upper left chest area near her neck causing the victim to fall backwards into the open screen door. The victim used her right hand on the screen door to try and keep her balance. The victim contacted a neighbour to request police attendance to her address as she does not have a telephone. About 1935 hours on Tuesday 24 January 2017 police attended ............ ... ... and spoke with the victim. Police obtained a Domestic Violence Evidence in Chief video statement from the victim. The victim did not give the accused permission to assault or harass her. The victim stated she did not receive any injuries from the altercation despite having a scratch in the vicinity of her left collar bone.”
[42] Exhibit G1, G1, page 177.
When the facts of this incident were put to the Applicant, he sought to deny the offending had taken place, although ultimately agreeing that he had pled guilty to the offence. The Tribunal refers to the following exchange[43]:
[43] Transcript 11 March 2021, page 57, lines 44 to 47; page 58, lines 1 to 17.
“Respondent: Okay. Do you have a recollection of attending the property, as it's been described, of [redacted, Ms C] asking you to leave, you being on the veranda and (indistinct) neck, so she fell into the screen door?
Applicant:     No, I didn't do that. She made that evidence up herself after I left.
Respondent: How do you know that? I thought you didn't remember?
Applicant:     Yes. I don't really remember that situation but I know that when I sent her the video evidence the police showed me the video evidence, she was under like made intoxication. She was so drunk and I could tell that she was making up the story.
Respondent: If the police were showing you video evidence then presumably you were charged and probably convicted of something, is that right or not?
Applicant:     That is right.
Respondent: So what I'm asking you then, is at page 40 of those documents, that entry from 17 May 2017 of contravene AVO, does that relate to what we're talking about now, about the incident with [redacted, Ms C] at her house on (indistinct)?
Applicant:     Yes, it probably was.
Respondent: All right. And did you plead guilty to that offence?
Applicant:     Yes, I think I did, yes.”
[Tribunal redactions]
The Applicant’s criminal history records a conviction for contravene prohibition/restriction in AVO (Domestic) on 17 May 2017, for which the Applicant received a fine[44].
[44] Exhibit G1, G3, page 36; repeated at Exhibit G1, G9, page 84.
In February 2017, NSW Police records indicate another two incidents involving the Applicant, as outlined[45]:
“… On Saturday 25th February 2017, the accused was at a party at an undisclosed location on [redacted, address], Griffith. The accused was under the influence of intoxicating liquor or illicit drugs as a result of this party. Shortly before 5.00 am, the accused left the party on [redacted, address]. About 5.00 am the accused attended the premises of .................. .......... The accused approached the premises of ........... ......... ....... and jumped over a fence to the side of the property and entered into the rear yard of the property. At this time, the Dog at the premises began to bark at the accused. The dog barking woke the witness and the victim. As a result of the dog barking the witness looked out of the rear window of the premises to see what was happening. The victim sighted the accused standing in rear yard of the premises. The accused sighted the witness through the window of the premises and ran to the rear of the yard. The witness observed the accused to attempt to hide in the garden shed. The accused failed to gain entry to the shed in order to hide and the witness observed the accused then run to the rear fence of the property and jump into the yard of ......... ......... .......... The victim contacted police at this time. A short time later the witness was in the rear yard attempting to ascertain if the accused had taken or damaged any property. The witness heard banging on the rear fence and turned to see the accused had climbed back into the yard of .......... ......... The witness walked into the rear sunroom of the premises and observed the accused in the yard. The accused yelled "where the fuck is the dog!" The accused then sighted the dog and the witness saw the accused run towards his dog and kick the dog. At this time the dog moved away from the accused. The accused approached rear door of the house and opened the door. The accused entered the rear sunroom of the premises via the rear door and looked at the witness, who had moved to the rear of the room. The accused then walked through the sunroom to the side door and exited via this door. The accused then chased the dog around the back yard of the premises for a short time. About 5.10 am police attended the premises and were allowed entry by the victim. Police proceeded to the rear of the premises where police observed the accused standing in the rear yard of the premises. Police placed the accused under arrest and cautioned him. Police then escorted the accused to the rear of the police vehicle where he was conveyed to Griffith Police Station. Upon return to the Police Station the accused was entered into custody and introduced to the custody manager. As a result of his highly intoxicated state, and the accused refusing to participate in an interview the accused was not read his part nine rights under the Law Enforcement (powers and responsibilities) Act, 2002. At this stage police are able to establish a break and enter component of an offence but are unable to establish any Indictable offences committed following this break and enter. as such police are considering charging the accused with a trespass offence. While the accused was not interviewed in relation to this matter, he has stated to a number of police involved that he is unsure what has happened. The accused has stated he has no memory of the Incident and has been extremely apologetic. The accused has requested the contact details of the victims in order to apologise for his actions. The accused has been charged with Trespass. Police have been unable to delete or reject the break and enter offence due to the event already being linked to the trespass charge.”
“… About 7.15 pm on Saturday 25th February 2017, police attended the premises of ......... , .... .. ... for the purpose of Investigating an unrelated domestic violence related verbal argument. [redacted, file number] relates. Police investigated this incident. At the completion of this investigation, police were informed by the victim that the accused had attended the premises earlier in the day. The victim did not sight the accused at the location and the victim was only aware of the accused's presence at the location due to her conversation with the witness. The victim handed police a Future Court Attendance Notice which had the accused's name on it, and related to the charge from the previous night. As a result of attending the premises the POI is breach of his AVO condition stating he must remain 100 meters from the premises. Police intend to followup with the witness in relation to this incident in order to establish proof for the offence…”
[Tribunal redactions, underline for emphasis]
[45] Exhibit G1, G1, page 170.
With respect to these two incidents, the Applicant was convicted of contravene prohibition/restriction in AVO (Domestic) and enter enclosed land not presc premises w/o lawful excuse and received a fine for both incidents on 15 March 2017[46].
June 2017
[46] Exhibit G1, G3, page 40; repeated at Exhibit G1, G9, page 84.
A NSW Police report refers to another incident involving the Applicant, where he was charged and later convicted of possessing a prohibited drug for which he received a fine[47]. The Tribunal refers to the following exchange with the Applicant when the reported facts of the incident were put to him during cross-examination[48]:
[47] Ibid; Exhibit G1, G1, pages 165 and 166.
[48] Transcript 11 March 2021, page 58, lines 23 to 46; page 59, lines 1 to 29.
“Respondent: Now, narrative 1 of (indistinct) on that page, it starts there saying that, on 16 April 2017 the victim, who appear to be [redacted, Ms C] and [redacted, Ms F], they allege that you arrived on the front door of the residence, in the company of a person only known to the victim as blank. Then it says
The accused has attempted to have a conversation with blank, regarding a past incident in which she has allegedly had her jaw broken in three places by the accused. The accused attended the address on the day to convince blank not to report the incident in which her jaw was broken. The victim, blank, has told the accused to leave the residence. At this time the victim alleged that the accused has taken a bottle held in his right hand and swung it in the direction of the victim, blank. The victim, blank, has put our her right hand to shield her mother from the bottle and the bottle has smashed on the victims hand, causing serious laceration to the victim blank's right hand. The swing by the accused has continued past blank's hand and struck the blank on the left side of her forehead, creating a laceration in her hairline.
Now, with that do you recall that accusation being made?
Applicant:     Yes, I recall it being made.
Respondent: But I'm assuming that you deny that?
Applicant:     Yes, of course, because I wasn't even at the residence at the time, I was in my own place.
Respondent: Okay. Now, later on, and it appears, if you go over to the next page, page 170, to the last three lines of the first narrative, it appears that police weren't prepared to charge Mr Zoing in relation to it appears what I've just described because there were conflicting versions of events and so on. But I raise that because while the police attended upon you in relation to that accusation they found 19 individually tin foil wrapped packages containing cannabis, is that correct?
Applicant:     Yes.
Respondent: Each individual package of the 19 weighed 1.3 grams. So was that cannabis in your possession?
Applicant:     Yes.
Respondent: Okay. What was that cannabis for?
Applicant:     That was for myself, because, as I said, I found the package when we were going out the previous night. I was walking and then near - there's this (indistinct) in Griffith, I found it in the woods area, near the car park area. So I picked it up.
Respondent: But before you found this cannabis, you had already begun smoking marijuana, hadn't you?
Applicant:     Yes.
Respondent: Because you've said like you said before, [redacted, Ms F] would obtain cannabis for the two of you, that's correct?
Applicant:     Yes. That was before.
Respondent: All right. Then you say you found this cannabis and you took possession of it?
Applicant:     Right. Yes.
Respondent: So if I go back to page 40, is that the conviction, on 14 June 2017, for possess prohibited drug?
Applicant:     Yes.
Respondent: And you were fined $400 for that?
Applicant:     Right.”
August 2017

The Applicant was convicted of drive motor vehicle while licence suspended – 1st offence. He received a section 10 bond and was ordered to complete a traffic offender intervention program by 1 December 2017. NSW Police reports record that after the Applicant was pulled over in early May 2017 for a road side breath test, he was unable to produce a licence, police checks revealed the Applicant was the holder of a learner licence, and was an unaccompanied driver who had failed to display their L plates on their motor vehicle as required, and was forced to surrender their learner licence to Griffith Police Station[49]. In evidence during cross-examination the Applicant accepted the reported facts which were put to him regarding the offence at the time[50].
April 2018
[49] Exhibit G1, G1, page 167; Exhibit G1, G3, page 36; repeated at Exhibit G1, G9, page 80.
[50] Transcript 11 March 2020, page 59, lines 31 to 46; page 60, lines 1 to 5.
NSW Police records indicate a further incident involving the Applicant in April 2018, and Ms F and Ms C. The Tribunal refers to the following records of NSW Police[51]:
“The victim in this matter is .......... The accused is in a defacto relationship with the victims daughter, ................... Sequence 1- Breach Bail On the 4th February 2018, the accused was charged in relation to ……...... The Accused was released on bail with the following conditions: -To strictly abide by the enforceable Apprehended Violence Order between the accused and .......... This Apprehended Violence Order, and; -The accused is not to enter ....... ....... or not to go within 100 meters of that area. The apprehended Violence Order expired on 22nd February 2018 .......... is a brick dwelling which is owned and maintained by the Department of Housing Griffith. The victim, ......... is the sole name on the tenancy agreement. On the 1st April 2018 the accused spend the night at ......... with the victim's daughter, .......... On the morning of 2nd April 2018 approximately 9:00am the accused and ......... engaged in a verbal argument in ......... bedroom. This argument was heard by the victim, the victim got out of bed and told ......... and the accused to "Shut the Fuck up". The argument subsided. The accused walked out of the house and waited outside for the ......... to go for a walk up the street. The accused entered the house again and engaged in a further verbal argument with ......... ' about how long she was taking to get ready. Due to this argument the victim approached the accused and told him to "Get the fuck out of my house". The accused exited the house through the front door and threw a football at the front door. The victim locked the front gauze door. The accused called out demanding his clothes from .......... Sequence 2- Malicious Damage. The accused paced on the front step of the location demanding his clothing, the accused grabbed hold of the frame of the window to the dwelling and shook it vigorously demanding ........... to hurry up. The window has shattered and large shards of glass and the gauze screen fell onto the dwelling landing on the floor and bed, this window was to the bedroom of .......... The victim walked to the doorway of the bedroom of ......... and observed the accused standing on the front step in front of the broken window holding a large shard of glass, the accused was holding in a manner that the victim felt he was going to throw the shard of glass into the dwelling. The victim closed the door to the bedroom. The victim informed the accused she was contacting police. The accused became remorseful and called out to the Victim, "I'll pay for it Nan, I'll pay for it". The victim stated "No" and that she would be calling police and contacted Griffith Police Station, where police could hear yelling and screaming in the background of the phone call. The accused ran from the location. Police arrived at ......... ... .. .... ......... within 3 minutes and spoke with the victim and .................. . refused to supply police with any details and when asked if she would provide a statement ......... refused. Police asked ......... if she would sign their notebook stating that she would not supply a statement to police which she also refused......... shortly after left the location stating she wished to go for a walk. The victim supplied police with a recorded Video Statement also known as a Domestic Violence Evidence in Chief. Photographs of the damage to the property were also taken. Police patrolled the area for the accused, the accused was located approximately 30 minutes after the Incident on the intersection of [address redacted] Griffith, Police introduced themselves and place of duty before informing the accused that he was under arrest for malicious damage. The accused was conveyed to Griffith Police Station where he was introduced to the custody manager and read his rights under Part 9 Law Enforcement (Powers and Responsibilities) Act 2002. The accused participated in an electronically recorded interview. At first the accused told police that he knew nothing about the incident and had not been at the location since Monday 26th March 2018, before admitting to staying at ......... on the night of 1st April 2018, getting into an argument with ......... where he grabbed hold of the window frame and shook it in anger and the window shattering. The accused denied both throwing the bail at the gauze and picking up any shards of glass. The accused stated that he was not aware that he had the above bail condition not to attend the ............. .............. ......... The accused further stated that he is homeless and stays at the premises on occasion at the invitation of the victim and .......... The accused also agreed that he did offer to pay for the window to be fixed. The accused is now charged with the matters before the court.”
[Tribunal redactions, underline]
[51] Exhibit G1, G1, pages 157 and 158.
The facts of this NSW Police report were put to the Applicant during cross-examination, the Tribunal refers to the following exchange[52]:
[52] Transcript 11 March 2021, page 61, lines 6 to 47.
“Respondent: Were you drunk then?
Applicant:     No, I was not.
Respondent: It was 9 in the morning?
Applicant:     Yes.
Respondent: So you were having an argument, you were swearing and being abusive and then you grabbed the window and shake it until it breaks and then you grab a large shard of glass, is that what occurred?
Applicant:     No, I did not grab a large shard of glass. Well, I probably did, just to pick it up off the ground because it was dangerous but I didn't intentionally want to use it to hurt anybody.
Respondent: Well, the victim, that was [redacted, Ms C], it says here:
The victim walked to the doorway of the bedroom of blank and observed the accused standing on the front step, in front of the broken window, holding a large shard of glass into the dwelling.
Sorry:
Holding a large shard of glass. The accused was holding in a manner that the victim felt he was going to throw the shard of glass into the dwelling.
Do you now remember holding a shard of glass?
Applicant:     I was - I was holding it, but I was not going to throw it. I was just holding it because I'd just broken a window and I'm just cleaning up after myself. I'm just picking all the shards of glass up.
Respondent: Okay. So now you remember holding shards of glass?
Applicant:     Yes, I said that earlier. I did remember picking it up, but not - not to intentionally hurt anyone with it.
Respondent: Then it appears [redacted, Ms C] indicated to you she was going to call the police and you were saying that you'd pay for the break, is that what happened?
Applicant:     Yes.
Respondent: Now, were you convicted in relation to that particular offence? It looks like, from the record, and you tell me if I'm wrong, that that may be the conviction of destroy or damage property less than or equal to $2000, on 26 April 2018, and you were fined $1000. Do you know whether that related to the breaking of the window? Sorry, Mr Zoing, you just broke up there for a minute, could you please repeat what you just said?
Applicant:     Sorry, I think, yes, that was the incident.”
The Applicant’s criminal history records indicate that the Applicant was convicted and fined for the following offences on 26 April 2018[53]:
(i)Contravene prohibition/restriction in AVO (Domestic);
(ii)Resist or hinder police officer in the execution of duty; and
(iii)Destroy or damage property less than $2,000 (DV).
March 2019
[53] Exhibit G1, G3, page 35; repeated at Exhibit G1, G9, page 83.
The Applicant appeared before the Griffith Local Court on 14 March 2019, where he was convicted of four offences, including three counts of contravene prohibition/restriction in AVO (Domestic), and one count of destroy or damage property less than $2,000. These offences occurred in the latter half of 2018. For each conviction the Applicant received an aggregate sentence including a non-parole period of six months, and a head sentence of imprisonment of one year[54].
[54] Exhibit G1, G3, page 35; repeated at Exhibit G1, G9, page 83.
The Tribunal refers to the sentencing remarks of Magistrate Beattie before the Griffith Local Court[55]:
“… In relation to the 14 August 2018, it involves two contraventions of an AVO. They are both matters of a domestic violence; he was on bail at the time. The matter proceeded to hearing, he pleaded guilty after the prosecution witnesses gave evidence; and he pleaded guilty to that. There will be no discount for the plea of guilty having heard the entire prosecution case.
I recall this matter clearly, there was one contravention, there was an AVO in place, the mandatory orders, the further order the he not approach except through a lawyer, and a further restriction that he not approach where the protected person who are in need of protection within 100 metres of [address redacted] Griffith. The compelling and overwhelming evidence of the mother of the complainant, who is also the current partner of Mr Zoing, was quite overwhelming and she did describe an incident where he first turned up, she makes no report to the police because as far as she was concerned he had left. He then returns, forcibly entering the home, grabs the young complainant who he was in a relationship with, and although it is not disclosed in the facts I do recall that there was an assault that took place although he has not been charged, but that is an aggravating feature of this matter because I do recall the evidence of the mother in describing the assault that took place on the young complainant. They are objectively very serious matters and he pleaded guilty at the time of the hearing.
In terms of the first contravention, which is entering the home, after considering that first matter for entering and the objective seriousness of the matter for offence number one I can indicate a sentence of three months fulltime custody. What I will do is the objective seriousness of all matters and then I will tell you what I will do with each matter.
Then the second in time is the destroy or damage property. A women's refuge, as we said, women are entitled to feel safe in a refuge. He was demanding, he was knocking on the door, insisting that he wanted to speak to again, involving the same complainant, [name redacted, Ms F]. In his fit of rage he bangs his hand and breaks the screen door. This would have terrified the women who were all in the refuge for a reason, trying to get away from violent partners. They would have been terrified by the experience. Nevertheless he has pleaded guilty, it is still an objectively very serious matter, and for that matter I will give you the sentence later in relation to these matters.
Then there is the further matter of a further contravene AVO, 2 November 2018, that involves violence as well. Serious matters, objectively serious midrange, and the authorities have made it clear, particularly Hamid, that in relation to domestic violence and particularly repeat domestic violence specific and general deterrence are very important considerations. I consider Mr Zoing a repeat domestic violence officer. In a short span of time he has repeatedly offended; it involves the same complainants over and over again, he has little regard, he has no regard for any Court orders, and nothing is stopping him.
Despite his limited record, although he has commenced a record in 2016, he is slowly accumulating a record. He denies any drug or alcohol problems. The submissions have been made that he was raised in a dysfunctional violent upbringing and this may have had an impact on him; but domestic violence will not be tolerated under any circumstances whatsoever.”
[Tribunal redactions, bold for emphasis]
[55] Exhibit G1, G4, pages 42 to 44; repeated at Exhibit G1, G10, pages 94 to 96.
When the facts of his offending were put to the Applicant, the Applicant sought to downplay or recast the reported facts. The Tribunal refers to the following exchange[56]:
[56] Transcript 11 March 2021, page 70, lines 1 to 47; page 71, lines 1 to 41.
“Respondent: So that describes, at the bottom there at 150, you, at night time, approaching into – sorry, approaching a woman’s refuge where it appears your girlfriend was staying at the time. And it appears that you were banging on the door, the broke the gate and you bent the screen door and so on. Do you remember that incident?
Applicant:     ---Yes.
Respondent: So why did you do that, why did you break the gate and the screen door, why were you banging and screaming for your partner at a woman’s refuge?
Applicant:     ---Well what had happened was that I was drinking at a friend’s house, right, and then [redacted, Ms F] comes around with a bottle from the outside, like we (indistinct) at that time, but she comes from outside with a bottle and she throws it at the window and breaks my friend’s house window, right. And I’ve gone out to go see her, go see what (indistinct) and she ended up taking off like before I even got to see her, she ran off and then I was like what the hell, so I followed her up to where she was staying (indistinct) you know, it’s all right. And I followed her out to the woman’s refuge which is just up the road. And then she goes inside the woman’s refuge and is staying there, like – and I was like – and then I came through the gate and when I came through, I pulled it hard and it came off the thing, like the hinges and whatever, like I pulled it too hard, like I was just only trying to close it but I did it too hard and it broke the gate. And I went to the door and I was knocking, and I was like, just come out, we can talk about this, you know. But I didn’t intend to scare anyone, I was just trying to get [redacted, Ms F] to come out so we can have a talk and ask her why she chucked the bottle at the window and I was keen to just go home with her, you know. Yes.
Respondent: Well why did you follow her, what was your intention, why follow her and then, you know, very physically open the gate, breaking it, and then bending the screen door, what was your intention?
Applicant:     ---I just wanted to talk to her, why did she break my friend’s house window, why did she do that for?
Respondent: Were you concerned that perhaps the reason that she didn’t stop, and went to a woman’s refuge, was because she was scared of you?
Applicant:     ---How can she be scared of me when she just broke a window in which I was staying at? She picked up a beer bottle and threw it at the window. (indistinct).
Respondent: Yes. And then she ran – and then she ran to a woman’s refuge?
Applicant:     ---Yes, I didn’t know where she was going to begin with, I thought it was just like a house or something. A home.
Respondent: Now the other thing I’ll ask you about that is the person at the woman’s refuge had indicated that she recognised you, she had seen you there the week before, do you know what that’s about?
Applicant:     ---No.
Respondent: All right. Then if I can get you to turn to page 154? I will just read this to you, it’s the first entry – halfway down the first entry. Around midday on Tuesday 14 August 2018, the accused attended blank and started banging on the front door of the property, the accused called out, is (indistinct) with you, the victim called back no, the (indistinct) you know you’re not allowed here. At this time, the victim did not see the accused, the victim recognised the accused voice and claims that the accused was (indistinct). Then you left, [redacted, Ms C] didn’t call the police because she’d left but it appears that that was a breach of the apprehended violence order because of course, you’re not supposed to go to that property. Then you returned at about 5 o’clock that same day. You followed blank and blank and entered the property, the accused forced his way through the front screen door while the victim was attempting to lock it, the victim apparently being [redacted, Ms C], the accused has then grabbed blank who was seated in the front lounge area and pulled her outside. Blank and the accused then walked up to where blank was with his car and got into the vehicle and left the location. All right, do you remember that occurring?
Applicant:     ---Yes, yes.
Respondent: And it occurred as the report said?-
Applicant:     --Yes, but – yes, she willingly came with me, it’s not like I kidnapped her or anything, she willingly came with me.
Respondent: Well once you forced your way into the house and grabbed her while she was seating in the front lounge of the room, at the point that you were with her once you grabbed her and pulled her out of the house, then she got into your car with you?
Applicant:     ---Yes, like – the thing was, [redacted Ms F] mum was standing at the door trying to stop her from getting outside of the house. And I was just annoyed because they were both intoxicated and it was kind of childish so I just opened the door and I put my hand out and I told [redacted, Ms F] come, let’s go, she grabbed my hand and I pulled her out of the house and then we walked and went to the car and then we just took off.
Respondent: Except, that’s not what the report says, the report says you forced your way into the house, past the victim, to [redacted, Ms F] who was seated in the area. She was not at the door trying to get out, she was seated in that area and you forced your way into the house and grabbed her. Grabbed [redacted, Ms F] hand and pulled her outside?
Applicant:     ---That’s what the report says, and that’s probably the evidence that the mum gave. But the thing was it wasn’t even that dramatic, I just put my hand out, that’s all I did. I just put my hand out like this, inside the door – I did kind of a little bit force myself through because I was trying to get the mum away because she was just stopping her daughter from getting to me. So I put my hand out and then I just grabbed [redacted, Ms F] arm and then she grabbed my hand and (indistinct) and we walked to the car and then we just took off. She even told me; my mum is not letting me go. And I was like you’re old enough to do whatever you want.”
[Tribunal redactions]
April 2019
With respect to the final convictions which appear in the Applicant’s criminal history, these relate to an incident which occurred in January 2019. The Tribunal refers to the following exchange with the Applicant during cross-examination when the facts of the offending episode were put to the Applicant:
“Respondent: And it says there that shortly before 10.15 am on 23 January you began arguing, it appears, with [redacted, Ms F]; is that right?
Applicant:     Yes, that’s right.
Respondent: And [redacted, Ms F’s] father asked you to leave the house as to not expose the children to your argument and then I’ll read - it’s about, I don’t know, a fifth of the way down the page:
The accused and the victim blank left the house and walked down [redacted, address]?
Applicant:     Yes.
Respondent:             The accused was walking his green bicycle and the victim blank continued shouting abuse and profanities loudly at each other as they went down the road. They were walking on opposite sides of the roadway. The accused stood on the roadway outside blank and picked his bicycle up over his head and forcefully threw it down on to the road. The accused picked the bicycle up again and threw it down on the road. The accused repeated this three or four times.
Do you accept that that that occurred, Mr Zoing?
Applicant:     Yes.
Respondent: All right.
At this time victim blank was standing across the road from the accused near blank. The victim yelled out to the accused ‘Stop it, stop it’. The accused ran towards the victim blank, who ran away from him towards blank, victim blank and then it appears she was lying in the foetal position in the front garden blank. The accused - - -
Respondent:             Well, before we go there, how did [redacted, Ms F] come to be on the ground?
Applicant:                 I don’t know. I pushed her to the ground, you know.
Respondent:             All right. So, you pushed her to the ground and then it continues:
The accused stood over the victim blank and used one of his legs to kick her.
That’s what happened, isn’t it?
Applicant:     No, I did not - I did not kick her.
Respondent: All right.
The accused then bent over the victim blank, grabbed hold of her hair and used his arm to punch her to the head.
That’s what happened, isn’t it?
Applicant:     No, it’s not what happened at all.
Respondent:  The accused yelled at the victim ‘Why do you keep on doing this to me? Why do you keep making me do this?’ Victim blank yelled out ‘Help, call an ambulance’.
That happened, didn’t it?
Applicant:     Not really like that but anyway, yes.
Respondent:  Witness blank yelled out to the accused get off her. The accused immediately stopped and screamed at the victim blank ‘Look at what you’ve done, they’re going to call the police’. Witness blank yelled out to the accused ‘It’s too late, the police have already been called’. Victim blank got up to her feet. The accused took hold of the victim around her throat and around her back and screamed in her ear.
That happened also, didn’t it?
Applicant:     No, I didn’t scream.   I was screaming (indistinct).
Respondent: Sorry, can you repeat that please?
Applicant:     I was - I was yelling and stuff and screaming but I wasn’t screaming into - into her face or into her ears or anything.
Respondent: But you also took hold of her around her throat and around her back, didn’t you?
Applicant:     No, I didn’t do that either.
Respondent: Just to be clear, you pleaded guilty to these - - -?
Applicant:     What I did was I - - -
Respondent: Sorry, go on?
Applicant:     Yes, I just did it, so I can lessen my sentence but all I did was I just picked her up from the ground and I told her like, why do you keep doing - making me do this, like, you know, making me get to this point, you know, like angry and stuff like that?
Respondent: So, when you picked her up from the ground, you took hold of her throat and around her back?
Applicant:     No.
Respondent: Well, how did you pick her up?
Applicant:     By the hand, I picked her up by the hand.
Respondent:             Victim blank brought both her hands up to her neck and struggled with the accused to break free from his grip.
Applicant:       That’s (indistinct).
Respondent: Sorry?
Applicant:     No.
Respondent: That didn’t happen?
Applicant:     No, no.
Respondent:             Victim blank got herself away from the accused and ran away.
I’ll skip down a little bit there.
The accused lifted up his bike over his head, threw it forcefully to the roadway and then the accused continued to yell abuse and profanity at the victim and continued walking up towards their residence as he yelled. Victim blank got up from the kerb and ran into their residence. The accused stayed on the roadway, picked up his bicycle above his head and threw it on to the roadway again. The accused sat down on the road, twisted his body from his waist to the right and forcefully hit his forehead against the road three or four times.
Did that all happen, smashing the bike, yelling and hitting your head on the road?
Applicant:     Yes.
Respondent: Sorry, what was that, Mr Zoing?
Applicant:     I’m sorry, yes.
Respondent: All right. And then the police attended and then both you and police appear to have lied to the police and told them that [redacted, Ms F] fell over while she was walking, rather than you pulling her to the ground; is that right, is that what you told police?
Applicant:     No, I didn’t say anything, she said everything.
Respondent: All right. Well, did you tell the police that you had, in terms of your head, hurt yourself when you bent over to help her up and that’s how your head was injured?
Applicant:     I don’t really - I don’t really remember.
Respondent: All right. The police left and then further down the page:
A short time after the police left the accused walked back down [redacted address] and stood at the edge of the road near the power pole out front and started yelling at the victim, ‘How can you embarrass me like that? How can you call the police?’ The accused walked into the front yard of blank and towards victim blank. Victim blank stood up on the porch and tried to speak calmly to the accused but the accused just continued shouting over her and walking towards the victim.
Respondent: So, this appears to be the account of what happened with [redacted, witness and victim – Ms V]. Is that what occurred, after the police left you started screaming again at [redacted, Ms F] embarrassing you and calling the police?
Applicant:     I can’t - I can’t really remember, hey, but I’m sure something like that happened.
Respondent: Victim blank - - - Which appears to be [redacted, witness and victim – Ms V]: - - - accused the accused of assaulting her while victim blank - - - Sorry:
Victim blank again and so she stood between the accused and victim blank to protect her. Victim blank told the accused to get off her property but he ignored her and continued to shout at victim blank - around victim blank.
Sorry about this:
During this the accused was about one metre from victim blank with victim blank standing behind her. The accused continued to step in towards victim blank and victim blank stepped backwards each time to maintain as much distance as she could between the accused and herself while trying to keep victim blank safe from the accused. Victim blank got petrified of the accused and feared that the accused would assault her to try to get to victim blank. Victim blank stepped around victim blank and begged her not to call the police.
Now, I know there’s a lot of blanks there but it appears what’s been said is you were trying to get at [redacted, Ms F] and [redacted, witness and victim – Ms V], on her own property, was standing between you and [redacted, Ms F] to protect [redacted, Ms F] from further violence by you. That’s what happened, isn’t it?
Applicant:     Yes, that’s what she was trying to do but instead we were trying to go downtown. We were trying to do something while she was just at the front of her house. She just stopped by to have a cigarette because she was sitting out the front having a cigarette, so she went up to have a cigarette and I was still a bit like heated in the head at the time. I was just going off my head like, let’s (indistinct) like, yes.
Respondent: Sorry, Mr Zoing, you just cracked up a minute there. Could you just repeat what you just said?
Applicant:     At that time, like me and [redacted, Ms F] were going downtown and when we were walking down the road from my dad’s house, she went to [redacted, witness and victim, Ms V] house to have a cigarette. She went to the front to ask for a cigarette, so she was there for a bit and I told her, like, hurry up, let’s go but then [redacted, witness and victim, Ms V] saw that I was, you know, getting heated and like loud and stuff, so she got in-between us. Her - her front yard is like - it’s part of - it looks like it’s part of the road. There’s no fence or anything, so I didn’t think I was crossing any - you know, breaking into her property, or anything like that. It was just in a - like a - like a grass patch in front of her house and it was right next to the road, so I didn’t know if it was her property at all.
Respondent: Then a bit further down:
The accused picked up a stick and walked towards victim blank shouting ‘I’m going to kill you, I’m going to bash you’. Victim blank yelled, ‘I’m scared, I’m scared but I love you’. So that appears to be indicating that you grabbed a stick, walked towards [redacted, Ms F]and you were shouting ‘I’m going to kill you, I’m going to bash you’.
And that’s what occurred, isn’t it?
Applicant:     No, it’s not. I just grabbed the stick and I walked to the tree and I hit the tree, that’s all. Because I was still a bit angry at the time, I just hit the tree. There was - there was a stick on the ground and I just picked it up and I hit the tree. I don’t know who - who said that but - yes.
Respondent: And is it fair to say, Mr Zoing, this is what you do when you’re angry, you bash things, you bash chairs, hit window frames?
Applicant:     Yes, I - I was - I was - yes, I was like that when I was younger, you know.”
[Tribunal redactions, underline for emphasis]

As noted in the exchange above, the Applicant pleaded guilty to the offences of common assault (DV), enter enclosed land not presc premises w/o lawful excuse, contravene prohibition/restriction in AVO (Domestic), stalk/intimidate intend fear physical etc harm (domestic) and stalk/intimidate intend fear physical etc harm (personal).
The Tribunal refers to the following extract from the sentencing remarks of Magistrate Beattie in the Local Court of Goulburn on 15 April 2019[57]:
“HER HONOUR: Clearly, the relationship that you had, I agree with the description of that in terms of it being toxic, and the intention to move away, a long way from [location redacted] and live with your grandfather, who is supporting you, is a positive move. Anything that gets you out of [location redacted] and away from that family, given the record with them, is a positive thing, so I support that.
It is a matter where, clearly, the only possible sentence I can give you where sentences of imprisonment are available are sentences of imprisonment because of the type of that violence, because there are breaches of the AVO and because it has now involved somebody else who should have been okay at her home, too, so your violence has spilled out into the street and into somebody else’s property.
There is big need to stop people from committing this sort of offending - domestic violence - and in relation to you, with the breaches that are there, and what you have accepted with Community Corrections, telling them about your need to work on controlling your anger and aggression, particularly within relationships. You are saying you have done one course while in custody. You need to do more work once you get out. Your record does reflect someone who has those difficulties. This is what I am going to do.”
[Tribunal redactions]
[57] Exhibit G1, G5, pages 45 and 46; repeated at Exhibit G1, G10, pages 87 and 88.
The Applicant was sentenced to a term of imprisonment of 16 months for the offences of common assault (DV), enter enclosed land not presc premises w/o lawful excuse, contravene prohibition/restriction in AVO (Domestic), stalk/intimidate intend fear physical etc harm (domestic); and received a sentence of imprisonment of six months in relation to the of stalk/intimidate intend fear physical etc harm (personal) offence[58].
[58] Exhibit G1, G3, pages 34 and 35; repeated at Exhibit G1, G9, pages 78 and 79.
The nature and seriousness of the Applicant’s conduct to date
The Tribunal has had regard to the following submissions of the Applicant with respect to assessing the nature and seriousness of the Applicant’s offending[59]:
“The Applicant accepts that the nature and seriousness of [his] conduct to date is viewed ‘very serious’, as it was a crime of a violent nature against a woman: Clause 13.1.1(b) of Direction no. 79.”
[59] Exhibit A3, paragraph 26.
The Tribunal concurs with the Applicants own characterisation of the nature and seriousness which their offending and conduct to date should be viewed.
The Tribunal is of the view that the nature and seriousness of the Applicant’s conduct enlivens the application of the following relevant sub-paragraphs in paragraph 13.1.1(1) of the Direction:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
…
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
…
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
…”
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”.
There is no doubt in the Tribunal’s mind that the Applicant’s conduct to date has enlivened the Application of both sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction. There are numerous incidents of violent related offending in a domestic context perpetrated against his former partner Ms F, and her mother Ms C. This offending eventually impacted an innocent member of the community who happened to be present when the Applicant was exhibiting further offending behaviour.
The Applicant engaged in repeat violent offending against his former partner, and despite multiple Protection Orders served on him, repeatedly sought contact with his former partner when he knew such contact was in contravention of orders. In a period spanning just over two years, the Applicant was convicted of contravening Protection Orders on seven occasions. The Applicant was questioned as to their repeat contraventions of Protection Orders during cross-examination at the hearing. The Tribunal refers to the following exchange:
“Respondent: I should ask you, at this point, Mr Zoing, at this point you were well aware that there was an apprehended violence order preventing you from approaching [redacted, Ms C] house within 100 metres?
Applicant:     Yes.
Respondent: And you kept on going back, having arguments, breaking things?
Applicant:     Yes. I didn't understand, at the time, the seriousness of it. Like no, I wasn't really aware of the law and all that stuff in Australia and what it could have done to me. I would have - - -
Respondent: It sounds like you understood it was against the law to do it, you just didn't think there was going to be much consequence if you continued to break the law, is that fair?
Applicant:     Yes. Yes.
Respondent: So you just thought that you'd continue to break the law because you wouldn't get in much trouble?
Applicant:     Yes. And I thought, at the time, as well, [redacted, Ms C], she would invite me back to the house like herself. She would invite me to the house, she would tell me, because I was homeless for a bit because very time she used to kick me out I was homeless, I had nowhere else to go. So she would probably - like she would feel sorry for us and she would invite me back to the house and then, you know, not knowing the seriousness of what I'm doing I'd just go back, thinking that (indistinct) be all good, but that wasn't the case.
Respondent: Well, Mr Zoing, you knew very well, you've just admitted that it was against the law to go back to the house. At this point you'd been convicted on two occasions of breach of an AVO, in relation to the mother?
Applicant:     Mm.
Respondent: So if you're tying to suggest you didn't know that it was against the law and that it was serious to continue breaching the AVO, I put it to you that you knew very well that it was against the law because you kept on going to court and be convicted for breaching the AVO?
Applicant:     Yes, I - - -
Respondent: What do you say to that?
Applicant:      - - - agree with that, I didn't know. I didn't say I didn't know, I did know that I was going to get in trouble, but I thought I was going to be secure with it, like, I don't know, it was just very complicated at that time.
Respondent: Are you suggesting that you knew you were breaking the law, but you didn't think you were going to get caught so you kept on doing it?
Applicant:     Yes, kind of. But the thing was, I was homeless, I had nowhere else to say. I was sleeping on the streets so I…”
[Tribunal redactions, underline for emphasis]
The Tribunal in earlier reasons has outlined examples of the Applicant’s violent conduct which had included pushing, kicking, yelling over and in the ear of his former partner Ms F, which was detailed by Magistrate Beattie in the Goulburn Local Court in April 2019[60].
[60] Exhibit G1, 55, page 45; Exhibit G1, G10, page 87.
In the Tribunal’s mind, the Applicant’s offending involving the destruction of property at a women’s refuge, resulting in a conviction for the offence of destroy or damage property less than $2,000, is very disturbing and adds to the seriousness with which the Tribunal views the nature of the Applicant’s offending (particularly with respect to the application of sub‑paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction) given that a women’s refuge is the very place where women present are entitled to feel safe. The Tribunal again refers to the sentencing remarks of Magistrate Beattie before the Griffith Local Court in March 2019[61]:
“… Then the second in time is the destroy or damage property. A women's refuge, as we said, women are entitled to feel safe in a refuge. He was demanding, he was knocking on the door, insisting that he wanted to speak to again, involving the same complainant, [name redacted, Ms F]. In his fit of rage he bangs his hand and breaks the screen door. This would have terrified the women who were all in the refuge for a reason, trying to get away from violent partners. They would have been terrified by the experience.”
[61] Exhibit G1, G4, pages 42 to 44; repeated at Exhibit G1, G10, pages 94 to 96.
It cannot be ignored that part of the Applicant’s offending is linked to the nature of his inter‑personal relationships and how he has dealt with difficulties which have been presented to him in such relationships; drawing into question the Applicant’s offending conduct, in a domestic setting (discussed by the Tribunal in the later reasons of this decision).
Further, the Tribunal notes the repeated acts of violence exhibited by the Applicant on occasion, for example: with respect to the smashing of a chair; smashing of glass shelving; and the smashing of a window; which in the Tribunal’s mind seeks to further demonstrate the serious nature of the Applicant’s violent offending. These acts highlight in the Tribunal’s mind the Applicant’s inability to control their emotional regulation when confronted with difficult impasses. This too is discussed further by the Tribunal in the later reasons of this decision.
Having regard to the evidence from the Applicant’s criminal offending history, and particularly the violence the Applicant has displayed in a domestic context, the Tribunal is of the view that the application of both sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction are clearly in favour a finding that the nature of the Applicant’s offending conduct is deemed very serious.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending does not attract the application of sub-paragraph (c) of paragraph 13.1.1(1) of the Direction as determinative of the nature or seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision maker (subject to sub-paragraph (b) of the same paragraph of the Direction), to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen (or the Applicant).
The Tribunal is of the view that given the Applicant’s criminal offending history, sub‑paragraph (d) of paragraph 13.1.1(1) of the Direction has application. The imposition of custodial terms is regarded as the last resort in the sentencing process and reflects the seriousness of a given offence committed by the Applicant.
The Applicant is currently 23 years of age, having largely resided in Australia since February 2013, noting they had undertaken several trips back to Fiji and New Zealand.
The Applicant’s criminal offending history in Australia began soon after their arrival, with their first offence committed in October 2016, with their offending conduct continuing through to January 2019[62]. The Applicant’s criminal offending in Australia has seen him appear before lawful authority for eight separate sentencing episodes, involving 18 offences, culminating in the sentencing of custodial terms of some eight and a half years (or 102 months)[63].
[62] Exhibit G1, G3, pages 38 to 40; and repeated at Exhibit G1, G9, pages 82 to 84.
[63] Ibid.
With the Applicant having arrived in Australia in February 2013, and taken into criminal custody in early 2019 (followed by their detention); the Applicant’s criminal offending has resulted in a sentencing regime representing custodial time greater than the time he has spent residing in the Australian community. The Tribunal reiterates that sentences involving imprisonment are normally the final resort in the sentencing hierarchy.
The Tribunal is of the view that the nature and seriousness of the Applicant’s criminal offending with respect to the sentences imposed by the Courts for that offending, is such that it is of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction requires a decision maker to consider the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness.
The Tribunal is of the view that there is indeed a pattern of increasing frequency and increasing seriousness when one objectively looks at the Applicant’s offending record. Once the Applicant’s offending commenced in 2016, the Applicant continued their offending in each year leading up to their incarceration, recording multiple serious convictions.
The Applicant’s trajectory of offending commences with violent incidents involving the smashing of a chair in October 2016, followed by the smashing of a glass shelf a few days later and the contravention of a Protection Order. This is followed in the following year (2017) with multiple breaches of Protection Orders (an increasing trend in the seriousness of the Applicant’s offending), including a conviction for the possession of drugs.
In 2018, the Applicant was involved in an incident which saw him smash a window and again contravene Protection Orders by removing a person in need of protection from their home.
In the Tribunal’s view, the Applicant’s offending noticeably increased in its seriousness from mid-2018, demonstrated in the Applicant’s convictions regarding the damage caused at a women’s refuge, followed by a violent incident involving intimidating behaviour towards his former partner and an innocent member of the public, which included the Applicant throwing a bicycle. These associated convictions highlight the Applicant’s continued disregard for the law with respect to Protection Orders which were in place preventing him from having contact with his former partner and his former partner’s mother. Despite such warnings being in place, the Applicant continually went on to offend against the same victim (his former partner), with this offending drawing into its orbit an innocent member of the public.
In the Tribunal’s mind, the Applicant’s offending had an increasing trend in its frequency and level of seriousness, the violence exhibited in the convictions has escalated over time, culminating in his final violent offence involving his former partner Ms F in public view, with a witness that was also intimidated by the Applicant.
The Tribunal is of the view that the weight attributable to sub-paragraph (e) of paragraph 13.1.1(1) of the Direction is such that it is in favour of non-revocation of the decision under review, and that the Applicant’s offending is deemed very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction requires an investigation of the cumulative effect of an Applicant’s repeated offending and how that does, or does not, demonstrate the seriousness of that offending.
It is apparent to the Tribunal that the earlier offending of the Applicant which resulted in convictions attracting sentences with non-custodial terms, had no deterring effect on the Applicant in terms of him moderating his behaviour (with reference to convictions and sentences in 2016 to 2018[64]).
[64] Exhibit G, G3, page 36; repeated at Exhibit G1, G9, page 80.
As referred to in earlier reasons, the Applicant’s criminal record shows that they have been the beneficiary of multiple good behaviour bonds and fines with respect to their earlier convictions. The Applicant was sentenced on six occasions, prior to their first term of imprisonment being handed down upon them, providing the Applicant with ample opportunity to moderate their conduct, and address the issues which predisposed him to offend[65].
[65] Ibid.
The cumulative effect of the Applicant’s offending has resulted in significant and increasing community resources to bring the Applicant to account for their actions, in addition to the adverse impact this has had on his victims and the community.
The Tribunal is of the view that the cumulative effect of the Applicant’s repeat offending warrants the application of sub-paragraph (f) of paragraph 13.1.1(1) of the Direction such that the Applicant’s offending is viewed very seriously.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub-paragraphs (g), (h) and (i) of paragraph 13.1.1(1) of the Direction, as determinative of the nature or seriousness of the Applicant’s offending.
Other conduct
The chapeau to the factors at paragraph 13.1.1(1) of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[Tribunal’s underlining]
Applicant’s conduct when arrested
There is a conviction within the Applicant’s criminal record with respect to resist or hinder police officer in the execution of duty for which the Applicant was fined on 26 April 2018, when he appeared before the Griffith Local Court[66]. NSW Police records confirm that when arresting the Applicant, the following occurred[67]:
“The accused was escorted to the front of the premises in an attempt to de-escalate the situation. As the accused approached the front door, he walked out on to the front veranda and has deliberately fallen forward onto the lawn in an attempt to avoid police apprehension. Police have taken hold of the accused around the waist area and requested that he place his hands behind his back numerous times, which he Ignored. The accused began thrashing his body around from left to right causing police to momentarily lose grip of him. At this point, the accused has stood and attempted to run from police. Police have taken hold of the accused by his arm and hair where a struggle has ensued. Police delivered a one to two second burst of Oleoresin Capsicum spray to his facial area, which did not appear to have any effect on him. At this point, ... .. .. .. ..... .. .. had exited the house and was standing on the front lawn. She was attempting to intervene screaming for police to let go of the accused as he had done nothing wrong. Simultaneously, the victim also exited the residence and was standing on the front lawn screaming for police to lock the accused up. The accused continued to thrash his body from left to right in an attempt to break free from police. Police issued a further one to two second burst of Oleoresin Capsicum spray to the accused facial area which had an immediate effect. The accused dropped to the ground, however, continued to thrash around. Police were able to place the accused in handcuffs…”
[66] Exhibit G1, G3, page 36; repeated at Exhibit G1, G9, page 80.
[67] Exhibit G1, G1, page 155.
The Tribunal observes that when the facts of this NSW Police report were put to the Applicant at the hearing during cross-examination they stated that the police present had administered Oleoresin Capsicum spray for no reason[68]:
“Respondent: So Mr Zoing, on page 159 it says at 9pm on Sunday 4 February 2018, the victim, and it appears that that’s [redacted, Ms C] from this record, contacted Griffith Police Station to report that the accused was assaulting her daughter. Police arrived a short time later and on approaching the front door of blank, blank, police could hear the victim screaming get out, get out. As the police approached the front door, they observed the accused standing in the kitchen area yelling at the victim. Police announced their office and entered the residence, the police approached the accused and have immediately taken hold of both of his arms, the victim was screaming for the police to get the accused out of the house. The accused was escorted from the front of the premises in attempt to de-escalate the situation. As the accused approached the front door, he walked out the front door and he has deliberately fallen forward onto the lawn to attempt to avoid police apprehension. Do you have any recollection of these events?
Applicant: No – yes. What happened is, they walked me off and I fell of the veranda and they thought that I was trying to get away, so they jumped on top of me and pepper sprayed me for no reason.”
[68] Transcript 11 March 2021, page 67, lines 37 to 47; page 68, lines 1 to 11.

His Honour Justice Steward similarly stated that[96]:
“89. It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90. However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.”
[96] Ibid.
Having regard to these authorities, the Tribunal is of the view that the Applicant’s criminal offending is very serious offending, and the Australian community would reasonably expect that he should not hold a visa.
That is, the Australian community would expect the non-revocation of the cancellation of the Applicant’s Visa. In this regard, the Tribunal notes that the principle in paragraph 6.3(2) of Direction No 79 is applicable. The principle stipulates that, “The Australian community expects that the Australian Government can and should refuse entry to noncitizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”.
The Tribunal has considered the primary consideration of the protection of the Australian community which includes the serious nature of the offences committed by the Applicant and the unacceptable risk if they were to be repeated.
In determining the weight attributable to Primary Consideration C, the Tribunal refers to the following relevant findings:
(i)The Applicant (prior to their incarceration and subsequent detention) had been part of the mainstream Australian community for the latter part of their adolescence and adulthood.
(ii)Whilst residing in Australia, the Applicant has failed to obey Australian laws, with a substantial number of convictions for very serious and often violent offences throughout their criminal history record. In the Tribunal’s view, any tolerance the Australian community has afforded the Applicant has surely been exhausted given the very serious nature of the Applicant’s offending, particularly that with respect to convictions regarding domestic violence, which is abhorred by the Australian community[97]. The Applicant has shown a lack of respect for lawful authority, the personal rights of others, and a refusal to follow the laws governing Australia.
(iii)The Tribunal’s assessment that it does not have before it a conclusive independent expert opinion which states that the factors predisposing the Applicant to their offending have been identified, addressed and are under remedial management and control.
(iv)The harm resulting from any return by the Applicant to their offending ways is very serious, such that any risk of similar conduct in the future is unacceptable.
(v)The Tribunal’s assessment of the significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[97] With reference to clause 6.3(5) and (7) of the Direction.

Conclusion: Primary Consideration C
The Tribunal is of the view that the above factors, read as a whole in the context of this decision weigh very heavily in favour or not revoking the cancellation of the Applicant’s Visa. The Tribunal accordingly finds that Primary Consideration C is of a very heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
Paragraph 14.1 of the Direction directs decision makers to consider international non‑refoulement obligations.
The Tribunal observes that the Applicant has submitted that the consideration of international non-refoulment obligations is not relevant to their circumstances[98].
[98] Exhibit A3, paragraph 49 and 50.
This Tribunal has had regard to the requirements of paragraph 14.1 of the Direction and is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction directs decision makers to consider the strength, nature and duration of ties to Australia, whilst reflecting the principles at 6.3. Decision makers must have regard to how long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Decision makers are also required to have given consideration to the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non‑revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In earlier reasons of this decision the Tribunal has outlined the background of the Applicant (repeated here):
(i)The Applicant is currently 23 years of age has resided in Australia for most of their adolescence and adulthood.
(ii)Following the separation of the Applicant’s parent’s, the Applicant moved to New Zealand with his father at the age of nine, but lived in the care of his paternal grandfather (initially) and the partner of his paternal grandfather (Ms Alena Kaitani). The Applicant remained in New Zealand until he migrated to Australia with his paternal grandfather in early 2013, just prior to turning 16 years of age.
(iii)The Applicant’s grandfather and his partner Ms Kaitani, are both citizens of New Zealand.
(iv)The Applicant’s mother resides in Fiji with her partner, and the Applicant’s father resides in New Zealand. The Applicant does not have a close relationship with his father but did spend time with his mother on a holiday to Fiji and New Zeeland during August 2015 to April 2016.
(v)The Applicant has eight half siblings to both his mother and father who all reside in either Fiji or New Zealand. The Applicant does not have any biological or step‑children of his own, and did not refer to any nieces or nephews in Australia. The extent of the Applicant’s family in Australia seems to be confined to his grandfather and his grandfather’s partner, a great uncle, who resides in Brisbane and Sydney, an uncle and aunty in Rockhampton and “some aunties and uncles around Australia”[99].
(vi)The Tribunal has previously referred to letters in support of the Applicant seeking that he remain in Australia[100]. In addition to a letter stating that there is the consideration of an offer of employment should the Applicant be given the opportunity to remain in Australia[101].
(vii)After graduating high school in 2014, the Applicant has maintained some employment over the years, but has lost their job on a number of occasions.
[99] Transcript 17 March 2021, page 92, lines 20 to 30.
[100] Exhibit A1; Exhibit A4; Exhibit A5; Exhibit A6; Exhibit A7; and Exhibit G1, G1, page 6.
[101] Exhibit A15.
It is evident to the Tribunal that the Applicant and his grandfather enjoy a close bond, and that should the Applicant be deported, the Applicant’s grandfather (and partner) would suffer emotional hardship. The Tribunal observes that the Applicant’s grandfather did concede that should the Applicant be deported they would be able to maintain the same contact via phone, and occasional visits, which (in the Tribunal’s mind) is consistent with the extent of the contact the Applicant has had with his grandfather in the past few years[102].
[102] Transcript 17 March 2021, page 110, lines 4 to 24.
With respect to submissions from the Applicant that they wished to pursue further studies to complete a trade should they be allowed to remain in Australia, the Tribunal observes that these opportunities have been provided to the Applicant before, and they were not taken up when he instead chose a path which led to his criminal conduct (and it would be open to the Applicant to pursue such studies should he be deported to New Zealand)[103].
[103] Exhibit A3, paragraph 62; Transcript 17 March 2021, page 109, lines 25 to 35.
The Applicant’s offending occurred just over three years following their arrival in Australia. The Tribunal has found that the Applicant’s offending is of a very serious nature, increasing in its seriousness over time and that it was frequent. The Applicant has appeared before lawful authority for eight separate sentencing episodes, involving 18 offences, culminating in the sentencing of custodial terms of some eight and a half years (or 102 months)[104].
[104] Ibid.
With respect to the application of paragraph 14.2(1)(a)(i) of the Direction, the Tribunal has limited the weight which may otherwise have been afforded to the Applicant in circumstances where the Applicant began their offending soon after their arrival in Australia.
The Tribunal is of the view that a limited measure of weight should be afforded to the Applicant in terms of applying paragraph 14.2(1)(a)(ii) of the Direction on the basis of the Applicant’s work history (although intermittent), and contributions to the community whilst they were in high school (which included playing team sports).
In applying paragraph 14.2(1)(b) of the Direction, the Tribunal has had regard to the emotional impact the Applicant’s removal will have on his family, and friends. The Tribunal is of the view that this attracts a moderate weight in favour of the Applicant.
Overall, in applying paragraph 14.2 to the factual circumstances of the Applicant, the Tribunal is of the view that this Other Consideration (b) weighs moderately in favour of revocation for the Applicant. Whilst the Tribunal has applied a moderate weight to this Other Consideration (b), it is by far outweighed by the very heavy the Tribunal has given to both Primary Consideration A and Primary Consideration C, both of which weigh very heavily in favour of non-revocation.
(c) Impact on Australian business interests
Paragraph 14.3 of the Direction directs decision makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal observes that the Applicant has submitted that the consideration of the impact on Australian business interests is not relevant to their circumstances[105].
[105] Exhibit A3, paragraph 49 and 50.
The Tribunal has had regard to the requirements of paragraph 14.3 of the Direction and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims
Paragraph 14.4 of the Direction requires decision makers to take into account the impact that a decision not to revoke the Applicant’s Visa would have on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
In the absence of evidence submitted to the Tribunal for consideration with respect to the victims of the Applicant’s offending regarding a decision not to revoke the Applicant’s Visa, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is neutral[106].
[106] Chung and Minister for Immigration and Border Protection (Migration) [2017] AATA 895, [at 88]; TBNM and Minister for Home Affairs (Migration) [2019] AATA 850, [at 81].
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction requires decision makers to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The Tribunal observes that the Applicant has indicated that they have not been diagnosed with any medical or psychological conditions in their Personal Circumstances Form submitted to the Respondent, nor have they tendered any independent medical evidence outlining any significant health concerns[107].
[107] Exhibit G1, G7, page 66.
The Applicant is seemingly in good health, and the Tribunal is of the view that, should the Applicant be deported to New Zealand, they would be able to have similar access to:
(i)comparable health care to that in Australia; and
(ii)comparable support for rehabilitation services to that in Australia.
The Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection[108], where Senior Member Kelly stated the following:
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”
[108] [2018] AATA 301 [at 101].
The Tribunal observes that the Applicant has previously resided in New Zealand and is familiar with the country. Should the Applicant be deported to New Zealand, he would suffer no language or cultural barriers. Any hardships (emotional or otherwise) the Applicant may face with resettlement would likely be temporary until he is able to establish himself.
With respect to submissions regarding the lack of support which could be offered to the Applicant from the Applicant’s grandfather in terms of financial assistance and housing, the Tribunal observes that the Applicant is a citizen of New Zealand and as such would be entitled to the same social security, medical, and education benefits as other New Zealand citizens[109]. Additionally, the Tribunal observes the Applicant’s evidence with respect to one of their trips back to New Zealand where they were able to arrange accommodation with a friend of their brother whom they did not know very well for “a couple of months”, seemingly at a whim, demonstrating the Applicant’s ability to draw on their network of family and friends for support[110].
[109] Exhibit A3, paragraphs 73 to 75.
[110] Transcript 11 March 2021, page 34, lines 1 to 7.
In view of the reasons outlined by the Tribunal with respect to the extent of any impediments a non-citizen may face if removed from Australia to New Zealand, it is the Tribunal’s view that paragraph 14.5 of the Direction weighs slightly in favour of revocation.
However, the Tribunal is of the view that the weight of this factor does not outweigh the very heavy and determinative weight the Tribunal has found for when combining Primary Consideration, A and Primary Consideration C.
Summary: Other Considerations
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a) International non-refoulement obligations, are not engaged in relation to the Applicant.
(b) Strength nature and duration of ties, are of a moderate weight in favour of revocation of the mandatory Visa Cancellation Decision.
(c) Impact on Australian business interests, is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims, is of neutral weight.
(e) Extent of impediments if removed, are of a slight weight in favour of revocation of the mandatory Visa Cancellation Decision.
The Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 14.1 to 14.5 of the Direction, weigh in favour of revoking the mandatory Visa Cancellation Decision (even when combined with each other); they are by far outweighed by the combined weight of both Primary Consideration A and Primary Consideration C, which weigh very heavily and determinatively in favour of non-revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(i)either the Applicant must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
The Tribunal has had reference to the Direction and to all the evidence before it and finds that there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision, the Tribunal has had regard to the Primary Considerations referred to in the Direction, and the Tribunal finds as follows:
(i)Primary Consideration A weighs very heavily in favour of non-revocation.
(ii)Primary Consideration C weighs very heavily in favour of non-revocation.
(iii)Primary Consideration B is not relevant to the factual circumstances of the Applicant and is not determinative of any finding.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal is of the view that any weight the Tribunal has found in favour of revocation from the Other Considerations (even when combined with each other), does not in any way outweigh the very heavy and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.
The Tribunal makes this finding with reference to paragraph 8(4) of the Direction which provides that, “Primary considerations should generally be given greater weight than the other considerations”. In the Tribunal’s mind, both Primary Consideration A and Primary Consideration C have been the determinative considerations in this matter.

It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 195 (one hundred and ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola

................................[SGD]........................................
Associate
Dated: 14 April 2021

Date of hearing:

11 and 17 March 2021

Applicant:

Solicitor for the Applicant:

Wayne Joseph Nesta Mucunabitu Zoing

Cynthia Bachour-Choucair

Jameson Law

Solicitor for the Respondent:

Tigiilagi Eteuati

Australian Government Solicitor

“ANNEXURE 1 – EXHIBIT REGISTER”

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

G Documents (Remittal Proceedings) (pages 1–422)

-

12 November 2020

R1

Respondent’s Updated Statement of Facts, Issues and Contentions (pages 1–11)

11 November 2020

12 November 2020

A1

Letter of Support from Applicant’s Grandfather
(1 page)

29 October 2020

30 October 2020

A2

Applicant’s Statement (2 pages)

30 November 2020

2 December 2020

A3

Applicant’s Statement of Facts, Issues and Contentions (11 pages)

26 December 2020

30 December 2020

A4

Letter of Support from Applicant’s Grandfather (6 pages)

26 December 2020

30 December 2020

A5

Letter of Support from Applicant’s Grandfather’s Partner (2 pages)

26 December 2020

30 December 2020

A6

Reference from Crossroads Prison Ministries (1 page)

28 December 2020

30 December 2020

A7

Letter of Support from an Educator & Friend (1 page)

20 December 2020

30 December 2020

A8

Certificate of Achievement – ‘Who are you?’
(1 page)

28 December 2020

30 December 2020

A9

Applicant’s Statement (12 pages)

27 December 2020

30 December 2020

A10

Higher School Certificate and Record of Achievement (2 pages)

13 January 2015

30 December 2020

A11

Hospitality – Cookery Work Placement Certificate with The Workers Bistro (1 page)

2 September 2013

30 December 2020

A12

Hospitality Work Placement Certificate with Diggers by the Park (1 page)

-

30 December 2020

A13

Certificate II in Kitchen Operations (1 page), and Transcript of Competencies Achieved (1 page)

13 January 2015

30 December 2020

A14

Statement of Attainment in Certificate II in Hospitality (Kitchen Operations) (1 page)

18 November 2014

30 December 2020

A15

Letter from CEO of Southern Training Organisation Pty Ltd (1 page)

4 March 2012

8 March 2021

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	G Documents (Remittal Proceedings) (pages 1–422)	-	12 November 2020
R1	Respondent’s Updated Statement of Facts, Issues and Contentions (pages 1–11)	11 November 2020	12 November 2020
A1	Letter of Support from Applicant’s Grandfather (1 page)	29 October 2020	30 October 2020
A2	Applicant’s Statement (2 pages)	30 November 2020	2 December 2020
A3	Applicant’s Statement of Facts, Issues and Contentions (11 pages)	26 December 2020	30 December 2020
A4	Letter of Support from Applicant’s Grandfather (6 pages)	26 December 2020	30 December 2020
A5	Letter of Support from Applicant’s Grandfather’s Partner (2 pages)	26 December 2020	30 December 2020
A6	Reference from Crossroads Prison Ministries (1 page)	28 December 2020	30 December 2020
A7	Letter of Support from an Educator & Friend (1 page)	20 December 2020	30 December 2020
A8	Certificate of Achievement – ‘Who are you?’ (1 page)	28 December 2020	30 December 2020
A9	Applicant’s Statement (12 pages)	27 December 2020	30 December 2020
A10	Higher School Certificate and Record of Achievement (2 pages)	13 January 2015	30 December 2020
A11	Hospitality – Cookery Work Placement Certificate with The Workers Bistro (1 page)	2 September 2013	30 December 2020
A12	Hospitality Work Placement Certificate with Diggers by the Park (1 page)	-	30 December 2020
A13	Certificate II in Kitchen Operations (1 page), and Transcript of Competencies Achieved (1 page)	13 January 2015	30 December 2020
A14	Statement of Attainment in Certificate II in Hospitality (Kitchen Operations) (1 page)	18 November 2014	30 December 2020
A15	Letter from CEO of Southern Training Organisation Pty Ltd (1 page)	4 March 2012	8 March 2021