APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS (SFIC)

1. The Applicant provided a SFIC dated 13 February 2025 and a supplementary SFIC which is dated 24 February 2025. Both these documents have been duly considered by the Tribunal.
2. The SFIC of 13 February 2025 makes reference to the fact that on 14 November 2022 the Applicant was convicted in the District Court of New South Wales Parramatta with knowingly deal with proceeds of crime, causing grievous bodily harm to a person, and intent and supply prohibited drug commercial quantity. The Applicant was sentenced to an aggregate term of imprisonment of three years and seven months. The term of imprisonment included a non-parole period of two years and two months and the sentence commenced on 19 August 2022 and the non-parole period expired on 18 October 2024. The Applicant was paroled on 18 October 2024 at which time he was taken to immigration detention at Villawood.
3. The submission notes that the Applicant's visa was cancelled under s 501(3A) by a delegate of the Department on the basis that the Applicant did not pass the character test because of the operation of s 501(6)(a) (substantial criminal record). The submission notes that on 23 December 2024 a delegate of the Minister decided not to revoke the cancellation of the visa.
4. The submission notes that documents were produced by the Department of Community and Justice (DCJ) as a consequence of a summons served by the Tribunal on 29 January 2025. The documents provided by the DCJ indicated that there was no information with respect to adverse incidents involving the Applicant during his incarceration at various prisons. There was no incident in which the Applicant was found to use drugs. There was an entry dated 9 September 2023 which states 'refuse failed drug sample'. Reference is made in these documents to educational courses undertaken by the Applicant during his period of imprisonment. The documents referred to a classification history with a reference to work release and minimum-security. The documents also show a long list of visitors who visited the Applicant in prison.
5. The submission takes umbrage with the decision of the Departmental delegate. The submission at points 18-48 makes reference to what the submission posits were errors in the delegates decision-making.
6. Point 49 of the submission makes reference to 'new information' from several sources received as a consequence of summonses issued which the submission posits "are significant and favourable to the Applicant's case before the Tribunal and which the delegate did not have before them.
7. This information was information received from DCJ, Healthcare Australia, the Department, and a report prepared by SERCO who oversee the Villawood Detention Centre. The submission notes that "it is significant that the Applicant has not had any adverse incident during the 26-month period that he was in prison".
8. In addressing the 'refuse failed drug sample' the submission notes that on the day of the incident, 9 September 2023 that the Applicant was asked by authorities to produce a urine sample straightaway without notice, however the Applicant advised that he could not do that straightaway, but he did not refuse to provide it. The submission notes that "it appears that the rule was that if he cannot provide it straightaway it is taken as refusal to provide. Under that circumstance we submit that it should not be considered adversely to the Applicant as if he had refused to provide a urine sample".
9. The submission makes reference to courses undertaken by the Applicant whilst in prison which the submission notes the Applicant enthusiastically embraced to enable him to enhance his skill set and to assist with employment when released back into the community.
10. The submission notes that material obtained from Healthcare Australia indicated that there was no evidence of any mental health issues with respect to the Applicant. The submission notes that the Applicant was only detained in Villawood Detention Centre on 18 October 2024 and on that basis the report from SERCO largely dealt with future strategies to deal with the Applicant and assist him during his period of detention. The SERCO report at page 14 notes that the Applicant "appears to be an individual who is self-reflective of his behaviours and has proactively attended numerous courses and programs during his time in corrections and is continuing to further develop and educate himself whilst in immigration detention to address his behaviours of concern".
11. The submission notes that there are a number of observations in the report from the detention centre indicative of the Applicant's positive attitude.
12. The submission makes reference to evidence from key witnesses provided to the Tribunal in support of his review Application. This includes statements from the Applicant, a statement from the Applicant's de facto partner, a statement from the Applicant's daughter, a statement from the Applicant's former partner and the mother of his child, a statement from the Applicant's mother, a statement from the Applicant's sister and a statement from a prospective employer.
13. The submission notes that the Tribunal on the basis of the evidence before it should make the following conclusions. That the Applicant has used his time in prison and immigration detention productively to reflect on his past and prepare himself to be a useful resident of Australia going forward. That there has been no reported drug use by the Applicant since his incarceration. That the Applicant has demonstrated remorse and rehabilitation. That the delegate made legal errors dealing with violence perpetrated by the Applicant with respect to the offence of grievous bodily harm with intent.that the delegate legally erred with respect to how they used media articles in the decision. That the delegate erred with respect to overall consideration of whether there is another reason to revoke the cancellation of the visa.
14. The submission notes that these conclusions should be made on the basis of the fact that there have been no incidences of aggression or other adverse incidences either in prison or in immigration detention. That the Applicant has strong support from his family especially his de facto partner and his daughter. While the Applicant initially lacked insight into the harm caused to the victim of his offending, he has reflected considerably about this and tried to understand things from the victim's perspective. That the Applicant has the potential to obtain employment if he is released into the community to enable him to get on with leading a productive life. Once again reference is made to deficiencies in the delegate's reasoning and evidence relied upon for the purposes of the Departmental decision.
15. The supplementary SFIC makes reference to what is submitted are four important documents that the Applicant wished to highlight from the returned DCJ summons. The DCJ documents of particular importance were those at pages 4-48 dealing with the Applicant from when he was taken into custody on 10 August 2022. The Tribunal has had due regard to these documents which relate to the Applicant's inmate profile report, regular case note reports whilst the Applicant was in prison along with the Applicant's education file, and community corrections report.
16. The case note reports indicate that the Applicant's behaviour whilst in prison was largely positive. The submission also notes that the Applicant had used the period of imprisonment to reflect on his offending and that he expressed remorse for his offending behaviour. The submission also notes that the Applicant used his time in prison to gain skills in the construction sector that would be directly Applicable in assisting him to find employment when he re-entered the community.
17. The submission notes that the key reasons for the Applicant's parole from prison was based on the fact that the Applicant had maintained a mostly positive record whilst incarcerated, there were minimal interventions available to him in custody, and the ongoing cost to the community of his continued incarceration. The submission notes that "Mr Tonga appears to have spent his time in custody appropriately utilising it to gain skills in the construction sector. He verbalises regret for his behaviour and concern for his victim as well as expressing a pro-social attitude, however, further clarification around these values would be beneficial. It appears that his continued incarceration would have little benefit as he has minimal interventions available to him. It is not clear why the report says there is a medium risk of reoffending, as all other aspects seem to be positive. We respectfully submit that it does not necessarily show consistency with the overall information".
18. The submission notes that over the course of the Applicant's imprisonment that there were 23 visits to him in a 12-month period indicative of significant community support for the Applicant.
19. Reference was made to the 15-character references provided on behalf of the Applicant, which have been duly considered by the Tribunal, which showed the substantial community support that the Applicant has from his mother, sister, partner, daughter, and a number of other deponents.
20. The submission notes that 20 pages in the DCJ documents provide detail about the education and training programs undertaken by the Applicant whilst he was in prison to enhance employment prospects in the event that the Applicant is allowed to return to the community.
21. The submission posits that the critical question is "will the Applicant reoffend after release and engage in activities harmful to the Australian community". The submission posits that the Applicant's recent behaviour and his expressions of remorse are indicative of the fact that the Applicant has rehabilitated himself and has shown himself to be of good behaviour and to have been respectful to the authorities both in prison and in immigration detention. The submission posits that these attributes are indicative of signs that the Applicant would become a responsible and law-abiding resident in the event that his visa cancellation was revoked.

RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS (SFIC)

1. The Tribunal received the Respondents SFIC which is dated 26 February 2025.
2. The submission notes that the Applicant is a 30-year-old citizen of New Zealand and arrived in Australia as the holder of a Subclass 444 visa in 1998. The submission notes that the Applicant was convicted in the District Court of New South Wales with knowingly deal with proceeds of crime, cause grievous bodily harm with intent, and supply prohibited drug, commercial quantity, deemed supply, and possess prohibited drug. As a consequence, the Applicant was convicted to an aggregate term of imprisonment of 3 years and 7 months.
3. The submission makes reference to the cancellation history under s 501(3A) of the Act on the basis that the delegate could not be satisfied that the Applicant passed the character test and the decision made by the delegate not to revoke the cancellation decision made on 23 December 2024.
4. The submission notes that it is the Ministers contention "that there is not another reason that caries sufficient weight or significance to satisfy the Tribunal that the original decision should be revoked".
5. With respect to primary consideration 1 the submission notes that the Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Furthermore, that decision-makers need to give consideration to the nature and seriousness of the non-citizens conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
6. The submission notes that the Tribunal should have regard to the principle that the safety of the Australian community is the highest priority of the Australian government.
7. The submission notes that the Applicants offending comes within the ambit of violent crimes and makes reference to the District Court sentencing comments with respect to the Applicant's offence of assault occasioning actual bodily harm.
8. The submission posits that a clear indicator of the seriousness of the Applicants offending is the fact that he was sentenced to a period of 3 years and 7 months imprisonment (aggregate term).
9. The submission posits that the Applicants offending is frequent and that there is a trend of increasing seriousness from the Applicant's first offence in 2015, driving a motor vehicle whilst suspended, to his offending for which he was convicted on 14 November 2022, namely knowingly dealing with the proceeds of crime, causing grievous bodily harm to a person with intent and supply prohibited drug, commercial quantity, deemed supply and possession of a prohibited drug.
10. The Respondent submits that the nature and seriousness of the Applicants offending conduct must be viewed by the Tribunal as very serious, particularly, with respect to the violent nature of the Applicants offending. The Respondent contends that this fact weighs strongly in favour of not revoking the decision to cancel the Applicant's visa.
11. The submission posits that the Applicant poses an unacceptable risk to the Australian community should he commit further offences or engage in other serious conduct. With respect to the Applicant's drug offending the submission notes that with respect to the nature of the harm caused, that drug use and abuse involves physical and psychological harm to members of the Australian community through the supply of prohibited drugs. With respect to the assault conviction, that no doubt the victim of the Applicants offending would have suffered not only physical harm, but psychological harm, and that the evidence indicated that the victim underwent a craniotomy, an elevation of skull fracture, and a titanium cranioplasty.
12. The submission notes that the assault for which the Applicant was convicted occurred in the middle of traffic and in view of the public and that if this type of violence was to occur in the future the potential outcome could be catastrophic.
13. The submission makes reference to the deleterious effects of the drug trade on the community, particularly methamphetamines, the supply of which the Applicant was convicted. The submission makes direct reference to the societal harm caused directly and indirectly by illicit drugs.
14. The submission notes that the Applicant's criminal record demonstrates that he has been involved in three instances of driving whilst his license has been suspended. The submission notes that the serious nature and adverse consequences of driving offences of this nature has been expressed in a number of cases such as the decision of SM Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561. On the basis of these repeat offences the submission posits that the Tribunal ought to find that such offending, if it was to be repeated by the Applicant, is so serious that any risk it may be repeated, is unacceptable.
15. The submission notes that the Applicant presents as a 'medium risk' of reoffending and notes that the Applicant's drug offending occurred whilst he was subject to conditional liberty (a conditional release order). Collectively the Respondent submits that the Tribunal cannot be satisfied that the Applicant would not reoffend and overall, that primary consideration 1 weighs significantly against revocation of the visa cancellation decision.
16. With respect to primary consideration 2, namely family violence, the submission notes that there is no evidence before the Tribunal that indicates that this consideration is an issue and hence the consideration should be afforded neutral weight.
17. With respect to primary consideration 3 strength, nature and duration of ties to Australia the submission notes that the Applicant arrived in Australia in 1998 when he was three years old and that he has lived almost continuously in Australia over the intervening 26 year period. The submission notes that most of the Applicant's immediate family members reside in Australia including his mother, sister and four brothers. The submission also makes reference to the many members of the Applicant's family that have provided statements in support of the Applicant. The Respondent submits that primary consideration 3 weighs in favour of revocation of the visa cancellation decision.
18. With respect to primary consideration 4, best interests of minor children, the Respondents submission notes that the Applicant has one biological minor child, who is an Australian citizen and who will be affected by the non-revocation decision. The Respondent also acknowledges statements from the Applicant's family that indicate that he has a number of nieces and nephews in Australia but notes however, that scant detail has been provided with respect to their names and ages, and the extent of the involvement that he has with them. The Minister contends that the Applicant's violent criminal history has not to date provided a positive role model for his daughter and notes that the Applicants daughter was at his apartment when he was arrested by police for his involvement with the supply of drugs, hence, the Applicant putting his daughter directly in harm's way. The Minister concedes overall that primary consideration 4 weighs in favour of revocation of the visa cancellation decision.
19. With respect to primary consideration 5, expectations of the Australian community the submission notes the prescriptive nature of this component of the direction and that given the severity of the Applicants offending to date that the Tribunal ought to conclude that the Australian community would expect that the Applicant should not hold a visa and that this consideration weighs significantly against revocation of the visa cancellation decision.
20. With respect to 'other considerations' they are dealt with in the Respondents submission sequentially. Firstly, the legal consequences of the decision. The Respondent notes that the Applicant would be liable to be removed to New Zealand and there is no indication that there would be any difficulty in the Applicant obtaining a travel document such that his detention would be prolonged. The submission notes that the Applicant has not made any claims which would require an assessment in relation to Australia's international non-refoulement obligations.
21. In terms of the extent of impediments if removed the submission notes that the Applicant is 30 years old, there is no evidence that he is in poor health, that English is the main language in New Zealand, that there would be no cultural, linguistic, or lifestyle factors that would impede the Applicant adapting to life in New Zealand. With respect to 'other considerations' the Minister submits that slight weight should be given to these considerations in the Applicant's favour.
22. In summary the Respondent submits of the 5 primary considerations that the Tribunal should find that the protection of the Australian community and the expectations of the Australian community weigh heavily against revocation of the cancellation decision and outweigh the other primary and 'other' considerations. The Respondent submits that given the seriousness of the Applicants offending that the Tribunal should conclude that these primary considerations outweigh all other relevant considerations. The submission notes that it is the Minister's position that there is not another reason why the mandatory visa cancellation decision should be revoked and that the delegate's decision to refuse to revoke the mandatory visa cancellation decision should be affirmed.

1. The Tribunal conducted a review hearing on 6 March 2025. The Applicant attended the hearing and was represented by counsel Mr Silva and his solicitor Mr Lindo. The Applicant's mother, daughter, sister, current and former partner's and a number of other relatives attended the review hearing. Ms Schultz from Mills Oakley appeared on behalf of the Minister.
2. At the outset of the review hearing the Tribunal noted that it was an independent review body. The Tribunal noted that its role was to consider the written and oral evidence before it and to determine whether there was another reason available to it to revoke the cancellation decision that had been made by the delegate. The Tribunal also advised the Applicant how the hearing would be conducted.
3. Mr Silva made an opening statement. Mr Silva noted the primary issue before the Tribunal was whether there is another reason to revoke the cancellation of the Applicant's Subclass 444 visa having regard to the relevant considerations in Direction 110. Mr Silva noted that protection of the Australian community should be given primacy in weight and required consideration of whether the Applicant would reoffend and indeed the likelihood of the Applicant reoffending. Mr Silva noted that based on prison records, detention records, the Applicant's engagement in courses whilst detained and the evidence of family members the chance of the Applicant reoffending was low.
4. Mr Silva noted that in order to assess the risk of violence in the future the Tribunal needed to consider whether the Applicant has a history of engaging in violence, reference to the Applicant's bail history, reference to the Applicant's behaviour in jail and in immigration detention and the Applicant's contribution to violence in the road rage incident. Further to this the nature of rehabilitation undertaken by the Applicant to reduce the risk of violence along with testimony of family members. Mr Silva noted that the Applicant came from a close-knit family and suggested a positive influence from family members with respect to his conduct going forward.
5. Mr Silva noted that the Applicants offending on 5 March 2021, namely the road rage incident, in which the Applicant engaged in violent behaviour was a one-off incident of violent conduct. Mr Silva noted that after committing the offence the Applicant was bail refused. The Applicant Applied for Supreme Court bail which was granted to him on 8 July 2021 and that prior to the Applicant being sentenced in the District Court of Parramatta that he lived for one year and four months in the community whilst on Supreme Court bail. Mr Silva noted that there were no breaches of any bail conditions.
6. Mr Silva noted that another indicator of the Applicant's likelihood to engage in violent behaviour going forward can be evidenced from the Applicant's behaviour whilst in prison and whilst in immigration detention. Mr Silva indicated that records from detention were indicative of the Applicant being polite, compliant, and of not engaging in violent behaviour.
7. Mr Silva made reference to a case of the Administrative Appeals Tribunal BHYK and Minister for Immigration and Citizenship [2010] AATA 662, in which Deputy President Handley noted that when considering periods a person is in prison and in detention that "we must be conscious to the fact that the tensions experienced in custody and detention are often more extreme than those experienced in the community". Mr Silva stated that if a person comes out of detention without any violence it is testimony to the Applicant's control given the testing environment of prison and detention.
8. Reference was made to the supplementary SFIC dated 25 February 2025. Mr Silva stated that the Applicant was reliant on that document with respect to evidence of the Applicant's behaviour in prison and in detention. The evidence indicated that the Applicant had no problem with inmates, the Applicant was interested in learning new skills, the Applicant is described in prison and detention records as being respectful courteous and polite. Mr Silva posited that "the consistency of his behaviour shows truly what he is made of". Mr Silva noted that the Applicant completed a period of two years and two months of imprisonment with no violent behaviour during his incarceration.
9. With respect to the Applicant's detention in the Villawood Immigration Detention Centre Mr Silva noted that there was no evidence of verbal or physical aggressive behaviour. The evidence indicated that whilst the Applicant was in prison and in immigration detention that he used it as a period of self-reflection with respect to his behaviour. The Applicant attended and completed numerous courses and programs whilst in prison and in detention.
10. Mr Silva addressed the Applicant's contribution to the violent offending that occurred on 5 March 2021, the offence of grievous bodily harm. Mr Silva noted that it was a 45 second incident. That the victim exited his car and initially grabbed a broomstick and then a crowbar. That the Applicant was swinging his hands towards the victim and asserted that the Applicant did not make a direct hit with the victim. Mr Silva noted that the other offender, the Applicant's brother pulled the victim down and that when the victim was on the ground the Applicant appeared to be swinging his hands and feet. The strike to the victim's head with a crowbar was perpetrated by the other offender. After the attack the victim got up. Mr Silva asserted that it was not the Applicant's role in this offending that caused the injury to the victim. Mr Silva noted that evidence had been provided by Dr French, a trainee neurosurgeon, which indicated that the injuries to the victim were caused by the crowbar.
11. Mr Silva made reference to the Applicant's actions to reduce risk in the future. Mr Silva stated that the Applicant had been engaged in soul-searching to mitigate future violence. The Applicant concluded that he was at fault with respect to the offending and apologised for the offending and wished to get on with his life.
12. Mr Silva made reference to evidence from the Department of Communities and Justice which indicates that the Applicant was polite in his interactions with staff and fellow detainees and prisoners whilst in detention.
13. Mr Silva made reference to evidence from persons close to the Applicant with respect to his propensity to engage in violence, who noted that apart from the March 2021 incident, there were no other issues of violence. Mr Silva referred to evidence of the Applicant's former partner that the violence in the road rage incident would in her view, unlikely to be repeated.
14. Reference was made to the large number of persons who had visited the Applicant in prison (23 in total) indicative of strong community and familial support.
15. Mr Silva addressed the drug issue. Reference was made to the sentencing comments of Judge Buscombe in the District Court noting that the Applicant had good prospects for rehabilitation if the Applicant stays away from drugs, but that he was not able to find that the Applicant would not re-offend.
16. Mr Silva stated that the Applicant had abstained from the use of drugs whilst in prison and whilst in immigration detention. It was noted that the Applicant had complied with drug testing requirements. Reference was made to the Applicant facilitating a session of Alcoholics Anonymous and Narcotics Anonymous on 14 August 2024 and evidence that when the Applicant attended the sessions in detention that he conscientiously engaged in the sessions. Mr Silva noted that the Applicant had no prior criminal record for drug offending prior to the serious drug offences conviction of 14 November 2022.
17. Ms Schulz addressed the Tribunal. With respect to Direction 110 Ms Schultz noted that safety of the Australian community is the highest priority of the Australian government and that any risk is unacceptable.
18. Ms Schultz noted that the Applicant's representative had attempted to minimise his offending behaviour with respect to the assault occasioning grievous bodily harm. Ms Schultz noted that the evidence before the Tribunal indicated that the Applicant punched the victim and kicked the victim in the head whilst the victim was lying on the road. Ms Schultz noted that the victim spent seven days in hospital. Ms Schultz made reference to the G documents at page 45 where the sentencing judge notes that "the offender Thomas Tonga approached the victim by running across the front of the victim's car and around to the driver's side. He appears to be trying to surprise the victim with his attack. He, together with the co-offender, wrestle and throw the victim to the ground. While the victim is on the ground, it is this offender who punches and kicks the victim to the head". Ms Schulz stated that it was the intention of the Minister to show a video of the event in question and she noted that the video had been referenced in the index of material contained in the tender bundle.
19. Ms Schultz noted that the Tribunal with respect to Direction 110 needed to address 5 considerations. Ms Schultz argued that with respect to the protection of the Australian community and the expectations of the Australian community that these factors weighed strongly against revocation of the Applicant's visa cancellation and indeed that they outweighed the remaining considerations.
20. Mr Silva with respect to an examination of the Applicant advised the Tribunal that the Applicant was reliant on his statutory declarations with respect to the revocation of his visa. Reference was directly made to the Applicant's most recent statutory declaration dated 11 February 2025 and the Applicant confirmed that the contents of this document was true and correct.
21. Ms Schulz made reference to the Applicant's criminal history 'check results report' dated 8 March 2023 located at G7 pages 38-40. This report indicated a conviction history spanning 30 June 2015 to 14 November 2022, consisting of 11 offences of which the Applicant was convicted of 9. Ms Schulz noted that the Tribunal could only have regard to the offending for which the Applicant was convicted. Ms Schulz noted that 9 offences over 7 years was indicative of a lot offending. Ms Schulz noted that the most serious offending was the offending for which the Applicant was convicted on 14 November 2022. That offending was knowingly deal with the proceeds of crime, supply prohibited drug, commercial quantity and cause grievous bodily harm to a person with intent.
22. Mr Silva advised that the Applicant did not wish to answer any questions with respect to this offending on the grounds of the risk of self-incrimination. Ms Schulz advised that the Minster was reliant on the findings of the District Court in Judge Buscome's sentencing comments contained in the joint tender bundle located at G7 pages 41-66.
23. The Tribunal was played a video of the evident grounding the grievous bodily harm charge. The Applicant was identified as the person wearing a black puffer jacket and his brother Samuel was wearing a white t-shirt.
24. Ms Schulz advised the Applicant that she wished to ask him some further questions. For the Applicant's benefit the Tribunal made reference to the definition of self-incrimination.
25. Ms Schultz made reference to a document located at page 238 of the tender bundle, namely a log of people who had visited the Applicant in detention. Ms Schultz noted that the Applicants younger brother Samuel, his co-offender in the 2022 grievous bodily harm matter, had visited the Applicant in detention according to the log. The Applicant noted that his brother Samuel had visited him in detention. He advised that his brother Samuel had been incarcerated, and that he has two young infant children. Ms Schultz asked the Applicant whether he intended to spend time with Samuel if he was released into the community. The Applicant stated that he had a close relationship with all of his siblings.
26. The Applicant was asked whether his siblings lived in close proximity to one another. The Applicant stated that they lived close to one another. The Applicant was asked where he would reside if he was released into the community and the Applicant stated initially with his mother in Willmot.
27. Ms Schultz made reference to page 34 of the tender bundle, the Crown submission with respect to sentence made to the District Court, which notes that at the time that the Applicant committed the offending in March 2021 he was subject to a Conditional Release Order which commenced on 5 November 2020 and ended 4 November 2021. Ms Schultz asked the Applicant if he was released on parole when his parole would end and the Applicant advised in early 2026. Ms Schultz asked the Applicant whether his parole would be supervised and the Applicant advised that he was not sure.
28. Ms Schultz asked the Applicant if he was on parole with conditions how the Tribunal could be satisfied that he would not commit further offences whilst on parole. The Applicant stated due to the significant impact of being imprisoned and that he wishes to be a better role model to his family.
29. Ms Schultz made reference to the documents from the DCJ pertaining to the Applicant's behaviour whilst in custody. Ms Schultz made reference to one offence where the Applicant had failed to provide a urine sample when requested to do so. The Applicant stated that he was asked to provide a urine sample in a public place and that he was anxious about urinating in public and could not urinate in front of people. The Applicant later learned that his failure to provide the urine sample equated to a test failure. The Applicant stated that from memory this was the first test that he had been asked to provide urine for, and that he did not understand at the time that he could turn around away from any people in the room, or could turn the tap on to assist him with urination.
30. Ms Schultz made reference to the Applicant's substance abuse. The Applicant stated that he started taking drugs in 2017. The Tribunal noted that the Applicant would have been approximately 22 at that time and that the evidence before the Tribunal indicated that he took illicit drugs at an earlier point in time. The Applicant stated that this was correct and that he started using illicit drugs when he was around 15 or 16 years old, drugs that he described as 'party drugs'. The Applicant was asked why he chose to take illicit drugs and the Applicant stated for societal reasons and that he took drugs with friends. The Applicant was asked whether he had taken drugs with family members and he advised that he had. The Applicant was asked whether he was still taking drugs and he advised that he was not. The Applicant was asked when he stopped using drugs and he advised before he was incarcerated so over two years ago. The Applicant was asked whether he could pinpoint whether he stopped taking drugs before we went to prison. The Tribunal noted that prior to his sentencing and imprisonment the Applicant had been living in the community on Supreme Court bail. The Tribunal asked the Applicant whether during the period of Supreme Court bail when he was living in the community whether he used drugs. The Applicant stated that he was not using drugs during this period only alcohol.
31. Ms Schultz noted that there was information before the Tribunal with respect to the Applicant possessing prohibited drugs and monies deemed to be from the proceeds of crime. Ms Schultz asked the Applicant whether he was engaging in this activity because he was in financial difficulty. The Applicant stated that he would like to claim the privilege against self-incrimination with respect to this question.
32. Ms Schultz made reference to the Applicant's statement dated 11 February 2025, specifically paragraph 29 of the statement. The Applicant was asked how long he had been with his current partner, and he advised for about 3 to 4 years, that he went to prison in November 2022 and that he was dating his current partner Savannah before he went to prison. Ms Schultz asked the Applicant whether he was seeing Savannah at the time of the grievous bodily harm offence. He confirmed that they were seeing each other but they were not in a relationship officially until 2022. The Applicant then went on to characterise the relationship until 2022 as an on and off relationship.
33. Ms Schultz asked the Applicant whether his family visited him frequently whilst he was in prison and detention and he advised that they did. Ms Schultz asked the Applicant whether he had a close relationship with his mother and he advised that he did. Ms Schultz asked the Applicant whether he had a close relationship with his other siblings and he advised that he did.
34. Mr Silva advised the Tribunal that there were no questions arising.
35. The Tribunal took evidence from witnesses for the Applicant. The first witness was Tayla Sautia, the Applicant's former partner, and the mother of his child. The witness advised that she was 30 years old. The witness advised that the statement that she had provided in support of the Applicant dated 10 February 2025 was true and correct.
36. The witness was asked by Ms Schultz whether she was aware of the Applicant's criminal record, and she advised that she was and that it consisted of a road rage incident and a drug-related incident. Ms Schultz made reference to the tender bundle at page 62 namely New South Wales police facts sheet with respect to the Applicant's offending. The witness was asked to read the top two paragraphs of the police facts sheet. Those paragraphs indicated that the drugs found in the possession of the Applicant were in open reach of the Applicant and the witnesses eight-year-old child who he had custody of at the time. Ms Schultz asked whether the witness was aware when the police executed a search warrant that they located drugs. The witness stated not at first. The witness was asked if she knew whether the drugs were in reach of her child and she advised that she did know that.
37. Mr Silva advised the Tribunal that the Applicant was reliant on the statement provided by his daughter JT and Ms Schultz advised that she had no questions with respect to the Applicant's daughter.
38. The Tribunal took evidence from the Applicant's mother Lata Elika Tonga who advised that the contents of her statement dated 11 February 2025 was true and correct.
39. Ms Schultz asked the witness whether she was aware of her son's criminal record, and she advised that she was. Ms Schultz asked the witness what her understanding of her son's criminal record was. She advised that it included a road rage incident and something to do with drugs. Ms Schultz had no further questions of the witness and the witness was dismissed.
40. The Tribunal took evidence from the Applicant's current partner Savannah Crichton. Ms Crichton advised the Tribunal that the contents of her statement dated 11 February 2025 was true and correct. Ms Schultz asked the witness whether she was born in New Zealand, and she confirmed that she was. Ms Schultz asked the witness whether she had Australian citizenship and she advised that she did not, and that she was in Australia as the holder of a Subclass 444 visa. The witness was asked how often she went back to New Zealand and she advised not very often and that the last time that she returned there was in November 2022. The witness confirmed that her parents lived in New Zealand and that she had 15 siblings that included seven full blood siblings. The witness advised that her siblings lived in both Australia and New Zealand. The witness advised that she moved to Australia in December 2016. She advised that she met the Applicant 7 to 8 years ago. She advised that their relationship commenced in 2022. The witness was asked whether she was aware of the Applicant's criminal record, and she advised that she was aware of the grievous bodily harm conviction, commercial drug supply conviction and deal with proceeds of crime conviction. The witness was asked whether she knew the facts around this offending and she advised "not entirely". The witness confirmed that she was not in a relationship with the Applicant when these offences were committed. Reference was made to paragraph 19 of the witness statement which indicated that prior to his incarceration that they did not live together permanently but she would stay at the Applicant's place after work or on weekends. She advised that she did not stay at his house in 2021. The witness confirmed that she was working as a legal assistant for a corporate law firm who are willing to support her in studies towards completing a law degree. Initially she would need to undertake and complete an associate degree which would take four years part-time or two years full-time and then she could pursue legal studies beyond that.
41. The witness advised that she was in the process of Applying for Australian citizenship but has not submitted the Application yet. Ms Schultz noted that the witness had been in a relationship with the Applicant for a significant period of time and asked whether she would go back to New Zealand with the Applicant if his visa was not revoked. The witness stated that she had been in Australia for 9 years, that she had a godson with whom she was close in Australia and that she does not know what she would do if she had to go back to New Zealand.
42. Ms Schultz asked the witness whether she was aware that with respect to the grievous bodily harm incident that the victim ended up in hospital for a period of seven days. The witness stated that she was not aware of this. She added that she was not aware of the specifics of what happened. Ms Schultz suggested that it was a matter for the Tribunal as to what weight should be apportioned to the witness statement given the absence of her knowledge of the facts around the Applicant's offending.
43. Ms Schultz made reference to the G documents at page G7 42. Ms Schultz made reference to the sentencing remarks in the District Court with respect to the road rage incident and the injuries sustained by the victim. The witness was also shown video footage of the incident. Ms Schultz noted that the witness could see from the video that both the Applicant and his brother Samuel kicked the victim in the head whilst he was on the ground.
44. Ms Schultz made reference to the tender bundle at page 62 namely the police facts sheet with respect to the commercial quantity of drugs. Those comments indicated that whilst policed searched the Applicant's home they found drugs, cash, three mobile phones and a counting machine and they had to use forced entry to access the premises. Ms Schultz asked the witness that at the time that she made her statement whether she was across the details of the Applicant's offending and the fact that drugs found to be in his possession were within the reach of his eight-year-old daughter. Ms Schultz asked the witness whether this information changed her view of the Applicant and she advised that it did not. The witness was asked whether she believed that somebody that kicks somebody in the head when they are on the ground or had dangerous drugs in close proximity an 8-year-old is of good character. The witness stated "no, not if they're in their right mind".
45. The Tribunal took evidence from the Applicant's sister Matalina Faamara. Reference was made to the witnesses statement of 11 February 2025 with the witness confirming that it was her statement, and that the contents were true and correct. Mr Silva stated that the Applicant was reliant on the contents of the statement.
46. Ms Schultz asked the witness where she stood in terms of her siblings and she advised that she was the oldest girl. She advised that she was married with four children. Ms Schultz asked the witness whether she attended her brother's sentencing in the District Court and she confirmed that she did with respect to the affray, road rage incident and the drug incident and that she was aware that her brother had committed grievous bodily harm.
47. The Tribunal enquired with the Applicant's representative whether they wanted to take evidence from Dru Tiatia, a potential employer, with respect to a prospective job offer for the Applicant if he was released into the community. The Tribunal advised that it accepted that the Applicant was the subject of a job offer by the witness as a scaffolder.
48. The Tribunal made reference to a bundle of documents that it had received just prior to the hearing from the DCJ. The Tribunal noted that those documents included police notations with respect to police interaction with the Applicant from the time that the Applicant was 14 through to 28. The Tribunal noted that these records ran for over 50 pages. The Tribunal noted that some of these notations led to the Applicant being charged with criminal offences and being subsequently convicted of criminal offences. The Tribunal noted that some of these entries did not result in charges or criminal convictions. The Tribunal noted that these documents suggested the Applicant had significant interaction with the police over the course of his life. The Tribunal noted that significant weight would be apportioned to the Applicant's offending that had resulted in a conviction. The Tribunal noted that the police entries found in the tender bundle from page 11 to page 61 formed evidence that was before the Tribunal and asked the Applicant whether he had been given an opportunity to review this evidence and he advised that he had not. The Tribunal advised that it was going to stand the matter down to allow the Applicant an opportunity to go through these police notes with his representative and provide any comments with respect to them that he wished to make. Upon resumption of the hearing the Applicant's stated that with respect to the police notes "I was in with the wrong crowd and I have disassociated from these people". The Applicant stated that with respect to the grievous bodily harm offences that he had given consideration to the impact on the victim and the victim's family and the mental pain and physical pain that he had caused the victim and the victim's family and that after he was sent to prison that he wanted to better himself to become a better role model going forward.
49. Ms Schultz advised the Tribunal that it should exercise caution with respect to the police notations in the tender bundle pertaining to the Applicant's interaction with police as a minor.
50. Mr Silva made closing submissions to the Tribunal.
51. Mr Silva noted that what is different for the Applicant now, since his offending that led to his imprisonment, is that he has been subject to a term of imprisonment. A term of imprisonment brings a realisation that if you do not change your behaviour that this is where you are going to stay. Mr Silva posited that this is the case with incarceration.
52. Mr Silva noted that the Applicant was of good behaviour for the duration of his prison sentence and has equally well behaved in immigration detention.
53. With respect to the 5 primary considerations Mr Silva noted that primacy should be given to protection of the Australian community. In this respect Mr Silva stated that the injuries sustained by the victim of the road rage incident were inflicted by the co-offender the Applicant's brother Samual with a crowbar and that this is confirmed in the report of Dr French the neurological registrar. Mr Silva posited that the punching and kicking of the victim did not cause these injuries.
54. Mr Silva stated that reliance should be placed on the prison and detention records with respect to the Applicant's behaviour.
55. Reference was made to the Applicant's statement of 11 February 2024 at paragraph 7 where he states, "I have spent numerous hours mulling over and agonising what has happened in a short period of time that resulted in me ending in prison and then be (sic) detained with the real possibility of deportation".
56. Mr Silva made reference to the Applicant's statement of 11 February 2025 at paragraphs 8-13 where the Applicant was addressing how and why he engaged in the road rage incident that led to the victims suffering grievous bodily harm in which he described his actions as being "stupid, dumb and unforgivable".
57. Reference was made to paragraph 13 where the Applicant was reconciling his conduct with his Christian beliefs and the fundamental teachings of Christianity and where the Applicant stated that he was "really ashamed for this hypocrisy on my part".
58. Reference was made to paragraph 39 which references the learning programs that the Applicant attended in prison and in detention and that he had learnt a number of techniques to assist him in avoiding conflict situations and where the Applicant states that he experienced "ongoing soul-searching because of my errors".
59. Reference was also made to paragraph 40 of the Applicant's statement in which the Applicant indicated that he will use what he has learnt from learning programs undertaken in prison to deal with future conflicts. The Applicant states that he is more empathetic and understands that everyone has problems in life and that he needs to deal with people in a fair manner.
60. Reference was made to paragraph 41 of the Applicant's statement where the Applicant has thought about the situation of other drivers on the road and that his actions with respect to the road rage incident was that he acted selflessly and that he has prepared his mind to walk away from conflict with drivers in the future.
61. Reference was made to paragraph 43 where the Applicant states "I would like to apologise to the victim for the physical and emotional pain that I caused him and his family. I would like to be able to take that pain away from them. I can now reflect on how I would feel if something like that happened to my sister, brother, partner, or any of my family members. I am extremely remorseful since then. I have tried to better myself".
62. Reference was made to the statement of the Applicant's former partner Tayla Sautia, dated 11 February 2025. In particular paragraph 7, which indicates that during the course of their relationship the Applicant was never violent towards her and did not take drugs while they were together and that they remain friends to jointly care for their daughter in an amicable manner.
63. Reference was made to paragraph 23 of the statement of the Applicant's former partner which states that when she heard about the violent assault committed by the Applicant on the victim in the traffic accident that she was dumbfounded and that she does not know where the outburst of violence came from.
64. Reference was made to the statutory declaration provided by the Applicant's current partner Savannah Crichton. Reference was made to paragraph 18 in which Ms Crichton states that the Applicant had never been violent towards her, and she had never seen him taking drugs and that she was aware of the fact that he had been convicted of the three offences that had led to his imprisonment.
65. Reference was made to paragraph 25 which indicates that she and the Applicant had discussed marriage and the prospect of having children together in the future.
66. Reference was made to paragraph 34 where Ms Crichton states that she believes that there are several reasons why the Applicant has changed. Firstly, the impact of being incarcerated. The impact that the Applicant's offending has had on Ms Crichton, the Applicant's daughter, the Applicant's family, and friends and most importantly the Applicant himself.
67. Reference was made to paragraph 36 of the statement where Ms Crichton indicates that the Applicant understands the consequences if he does not change and knows that the love and support that he has from his close friends and family may not last forever and he may not be given a second chance.
68. Reference was made to the statement of the Applicant's mother Lata Tonga, dated 11 February 2025. Reference was made to paragraph 11 of the statutory declaration where Mrs Tonga states that she asked her son why he did these terrible things and he advised that he regretted the choices that he had made because he could now see the impact of his actions on his family and friends, and he regrets the hurt that it caused the victim and the victim's family.
69. Reference was made to paragraph 12 which notes that the Applicant did not have a history of violence and that Mrs Tonga could not understand the outburst of violence that occurred in her son in his late 20s.
70. Reference was made to paragraph 16 in which Mrs Tonga notes that the Applicant advised her that he regretted what he did to the person on the road, describing it as impulsive and foolish, and that he felt sorry for the victim and the victim's family and that he felt ashamed for what he did to the victim.
71. Reference was made to the statement of the Applicant's sister Matalina Faamasa. Reference was made to paragraph 5 of the declaration in which Ms Laamasa states that the Applicant has compassion.
72. Reference was made to paragraph 6 in which Ms Laamasa states that she believes that the road rage incident occurred in the heat of the moment and got out of hand, that the Applicant is not perfect and he made a mistake and has served his time in prison with respect to this. She notes that the Applicant cares deeply for others and loves helping others and making sure everybody is good except himself.
73. Reference was made to paragraph 15 in which Ms Laamasa states that she believes that anybody can change and improve their life if they want to. She believed her brother was remorseful. Her brother could see how his offending has impacted everybody around him and that he is committed to starting a new life with his partner if he is released back into the community.
74. With respect to the drug offending Mr Silva noted that there was no prior offending with respect to drug offences prior to the 2021 incident. There was no evidence of drugtaking in prison or in detention. Reference was made to the fact that the Applicant had facilitated a Narcotics Anonymous session in detention in which officers noted the Applicant did a commendable job. Mr Silva noted that there were positive signs with respect to drug rehabilitation.
75. Mr Silva noted that with respect to the Applicant's history with drugs reference should be made to the Applicant statement dated 11 February 2025.
76. Reference was made to paragraph 14 in which the Applicant noted that the police found drugs and money in his premises but that the Applicant did not want to go into the details of this offending and was claiming privilege against self-incrimination.
77. Reference was made to paragraph 15 of the Applicant's statement where the Applicant stated that he understands the objective of the Australian government in protecting its citizens and that he understands that it is a privilege to live in Australia.
78. Reference was made to paragraph 16 where the Applicant stated that if he was to get back into drug use again that he understands that it will take him back to prison wherever he may be living at the time.
79. Reference was made to paragraph 38 of the Applicant's statement which indicates that the Applicant participated in Narcotics Anonymous and that he would attend these sessions once a week whilst he was in prison over a period of 19 months.
80. Reference was made to paragraph 44 of the Applicant's statement where the Applicant states that he understands that being involved in violence against others, dealing with the proceeds of crime, or getting into drug supply or drug use, is dangerous and harmful to the society and that he realises the consequences for his family were enormous.
81. Mr Silva noted that with respect to primary consideration 2 namely family violence that this consideration was not relevant in the circumstances of this case.
82. With respect to the strength, nature, and duration of ties to Australia Mr Silva noted that the Applicant had been residing in Australia from age 3 to age 30. Mr Silva noted that the Applicant has strong familial connections to Australia with his mother, his siblings, his daughter, his former partner and his current partner all resident in Australia. In addition to this the Applicant has a number of nieces and nephews with whom he is close.
83. With respect to the best interests of minor children, reference was made to the fact that the Applicant has a 12 year old daughter who is an Australian citizen, and Mr Silva referred to the Applicant's daughter JT's statement.
84. Mr Silva made reference to JT's statutory declaration at paragraphs 4-7. The Applicant's daughter states in these paragraphs that she is close to her father, that he has always supported her in every possible way particularly with respect to her rugby career. She advises that he was involved in coaching her prior to being imprisoned and that he would pick up from school, assist with football practice and attend training sessions. The Applicant's daughter states that because of the Applicant's support she was able to get into a selective sports high school in Western Sydney. The Applicant's daughter described herself a "daddy's girl".
85. Reference was made to paragraph 13 and paragraph 16 of JT's statement. The Applicant's daughter states that when the Applicant is released into the community that she would like to live with him because she feels happy with him, and she describes her father as the most important person in her life. The Applicant's daughter states that she could not imagine her father being sent away to New Zealand and believed that if he was removed it would destroy her life and it would be hard for her to live happily after that.
86. Mr Silva again made reference to the statutory declaration of the Applicant's sister Matalina Faamasa at paragraphs 9-13.
87. These paragraphs relate to the Ms Faamasa's observations of the Applicant's relationship with his daughter. Ms Faamasa notes that the Applicant helped raised his daughter from when she was born and that he has instilled in his daughter strong family values. She also noted that the Applicant would bring his daughter to Ms Faamasa's residence. Ms Faamasa noted that JT had been struggling emotionally since her father had been incarcerated.
88. Reference was once again made to the Applicant's mother statement with respect to the Applicant's relationship with his daughter. The relevant paragraphs of the statutory declaration were those at paragraphs 6-9. The Applicant's mother noted that the Applicant had been a wonderful father and that his daughter meant the world to him and that he had been a constant source of love, guidance and stability. She describes the strong bond that her son has with his daughter. She advised that the Applicant had raised his daughter since she was a minor and had provided for her well-being. She noted that the deportation of the Applicant would break his daughter's heart and leave a hole in her life.
89. Reference was also made again to the statement of the Applicant's ex-partner Tayla Sautia with respect to the Applicant's relationship with their daughter. The relevant paragraphs in this respect were paragraphs 14-16. Ms Sautia observes that their daughter had not been the same since the Applicant went to prison. Ms Sautia noted that the Applicant's daughter had always been a "daddy's girl". Ms Sautia noted that the Applicant had spent a lot of time with his daughter as a personal coach which led to her being able to attend a selective high school because of her sporting skills. The statutory declaration notes that if the Applicant is released back into the community he will be able to assist his daughter with her sports career and her emotional well-being. Ms Sautia also noted her daughters wish to reside with her father if he is released into the community and that she was supportive of this happening.
90. With respect to expectations of the Australian community that this tied in with primary consideration 1. It was noted that there should be high tolerance for somebody who has lived in the Australian community for a long time.
91. Mr Silva posited that cumulatively considering the primary considerations that there was a strong case for revocation of the cancellation of the Applicant's visa.
92. Ms Shultz made closing submissions to the Tribunal. Ms Shultz noted that the Minister was reliant on the SFIC dated 26 February 2025.
93. Ms Shultz made reference to the fact that the Applicant, in his criminal offending had three instances of driving while suspended, and noted the inherent dangers and risks associated with this type of behaviour.
94. Ms Shultz noted that there had been 11 offences recorded in the criminal history of which the Applicant had been convicted of 9, with 2 of the offences being quashed by the courts.
95. Ms Shultz noted that with respect to the police events recorded in documents from the Department of Communities and Justice, caution should be exercised with respect to the consideration of those police events when the Applicant was under the age of 18.
96. Ms Shultz in addressing Direction 110 stated that the safety of the Australian community and the protection of the Australian community should be given greater weight than the other considerations.
97. With respect to primary consideration 1 Ms Shultz noted that the Applicant had refused to answer questions on the basis of the risk of self-incrimination. Ms Shultz argued that the weight attributed to the statement of the Applicant should be tempered by the fact that the Applicant's evidence with respect to his offending behaviour could not be tested.
98. Ms Shultz noted that with respect to the supply prohibited drugs commercial quantity, proceeds of crime offences and the grievous bodily harm offences that the Applicant was sentenced to a term of imprisonment of three years and seven months indicative of the severity of that offending. Ms Shultz noted that prison is the last resort in the sentencing hierarchy.
99. Ms Shultz noted that with respect to the other offending of the Applicant that there is evidence of a lengthy criminal history.
100. Ms Shultz stated that the evidence indicated that there is a likelihood the Applicant would reoffend, and the risk of the Applicant reoffending is unacceptable and that it could cause serious harm. Reference was made to page 46 of the tender bundle, namely, the sentencing assessment report prepared for the Parramatta District Court in 2022 and notes that the Applicant had been assessed at T2 medium risk of reoffending. Further to this, that in the Applicant's pre-release documents prior to his release from prison, that parole determined in July 2024 that there was a medium risk of the Applicant reoffending.
101. Ms Shultz noted that the risk of the Applicant reoffending would cause both physical and psychological harm to the Australian community because of the nature of the Applicant's previous offending history.
102. Ms Shultz noted that the victim of the grievous bodily harm offences spent seven days in hospital, underwent two surgical procedures and noted that the Applicant's representative had attempted to minimise the Applicant's role in the offending. The evidence was clear that the Applicant kicked and punched the victim including when the victim was on the ground. Ms Shultz noted that the sentencing remarks of the District Court judge indicated that the role of the Applicant in the offending was duly considered by the judge. With respect to intent, the Applicant was convicted of grievous bodily harm, and there is no getting around the fact that the Applicant kicked the victim in the head whilst the victim was on the road. Ms Shultz noted that the assault occurred in moving traffic. Ms Shultz noted that if an offence of this nature was to be repeated it could have catastrophic consequences.
103. Ms Shultz noted that the Applicants drug offending involved methamphetamines and that the effects of methamphetamines on the community is well-known. Ms Shultz submitted that the Applicant's circumstances have not changed.
104. Ms Shultz made reference to paragraph 10 of the Applicant's statement where the Applicant is addressing the road rage incident that led to the victim suffering grievous bodily harm. The Applicant in this paragraph of the statement wonders whether the outburst was due to excessive pride or self-importance or a combination of those factors and notes that "I can't honestly put a finger on what it was".
105. Ms Shultz stated that this was a concern suggesting the Applicant could not identify why he engaged in this behaviour. The behaviour appeared to be impulsive, and Ms Shultz stated that this suggested that the Applicant may act impulsively again in the future. If the Applicant does not know why he engaged in this behaviour, then the risk of it occurring in the future exists.
106. Reference was made to the T documents at page 50 namely the sentencing comments of Judge Buscombe in the District Court in which it is noted "the offender reported to the psychologist that he faced financial difficulties during the period leading up to the offending as a result of losing his employment, at a time when he was using illicit substances. He told the psychologist that he committed the drug supply and proceeds of crime offences with a view to addressing his financial difficulties. The offender told the psychologist that he agreed to store the drugs and money for a few nights on the basis that he would receive financial compensation for his involvement". Ms Shultz stated that with respect to this evidence if the Applicant obtains a job if he is released into the community and loses it the Tribunal cannot be satisfied that he would not return to crime in order to meet his financial obligations.
107. Ms Shultz made reference to the fact that the Applicants grievous bodily harm offending occurred in consort with his brother. Ms Shultz notes that the Applicant since the offending has been in contact with his brother and given the nature of the offending that the Tribunal should be concerned about the Applicant's contact with the co-offender.
108. Ms Shultz noted that the Tribunal had questioned the Applicant with respect to his 2017 offending. That offending led to a conviction for riding a stolen motorcycle whilst not licensed to do so, and not being in possession of a motor vehicle licence due to losing it through the demerit system. The Tribunal noted that in his submissions to the Local Court at the time of his conviction, the Applicant expressed his remorse for the offending and undertook not to commit further offending going forward. Ms Shultz noted that despite these assurances the Applicant went on to commit further offending in 2021.
109. Ms Shultz noted that the Applicant has provided evidence that because of the close support of his family, the close relationship that he has with his daughter, and the relationship that he has with his partner that cumulatively, these relationships are protective factors with respect to him not reoffending in the future. Ms Shultz pointed out that these factors were put forward to the Local Court in submissions in 2017 and noted that these protective factors did not stop the Applicant from reoffending again and posits that the Tribunal should ask the question as to whether these protective factors would provide protection from reoffending in the future.
110. Ms Shultz noted that the Applicant, if released, had not given significant consideration to where he would live, or whom he would live with in respect to parole considerations. The Tribunal noted that the Applicant had expressed that he would return to live with his mother in Willmot.
111. Ms Shultz acknowledged that the Applicant had expressed remorse for his offending behaviour and once again highlighted the seriousness of the offending and submitted that the Applicant continued to present to be a risk and that there are findings in pre-sentencing reports and by the parole authority that the Applicant falls into the category of having a medium risk of reoffending. Ms Shultz noted that given the violent nature of the grievous bodily harm offences that impulsivity was involved and that the risk that this may happen again is unacceptable.
112. Ms Shultz noted that with respect to family violence that this consideration was not relevant.
113. With respect to the strength and duration of the Applicant's ties to Australia Ms Shultz notes that the Applicant arrived in Australia in 1998 when he was 3 years old. Ms Shultz acknowledged that the Applicant had a loving family, however that the presence of his family in the past, did not prevent the Applicant offending. Ms Shultz conceded that this factor weighed in favour of revocation.
114. With respect to the best interests of minor children Ms Shultz noted that with respect to nieces and nephews the Applicant needed to account for the relationship with each of his nieces and nephews and that evidence existed that the Applicant has a loving relationship with his nieces and nephews, however not a parenting role. Ms Shultz also conceded that the evidence indicated that the Applicant had a close relationship with his daughter, however she added that at the time of the Applicants drug offending, his then eight-year-old daughter was living with him with drugs in her proximity. This fact needed to be given consideration with respect to whether the Applicant can be seen to have been a positive role model. Ms Shultz noted that the Applicant's daughter is currently being cared for by her mother and stepfather. Ms Shultz conceded that this consideration weighed in the Applicant's favour with respect to revocation of the cancellation.
115. Ms Shultz noted that with respect to expectations of the Australian community that this consideration weighed significantly against revocation of the cancellation. Reference was made to 8.5 of Direction 110 which states that non-citizens should obey the rules of the country and it is not for the Tribunal to determine the expectations of the Australian community and that it is the Minister's position that the Applicant has failed to meet the expectations of the Australian community.
116. Ms Shultz noted that with respect to other considerations only two Apply. In terms of the legal consequences of the decision to cancel the Applicant's visa, Ms Shultz notes that the Applicant was born in Niue and that he has the right of residency in that country and automatically acquired the right of citizenship to New Zealand. If the cancellation decision was affirmed Ms Shultz noted that the Applicant would remain in a detention centre until such time that his removal from Australia could be arranged and envisages that that period would not be prolonged. Reference was made to the High Court decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37in which the High Court said no to indefinite detention.
117. Ms Shultz noted that the Applicant had not raised any protection claims. She noted however, that that pathway was open to the Applicant, however that this consideration should only be given neutral weight.
118. With respect to the impediments if the Applicant was removed from Australia Ms Shultz noted that the Applicant was 30 years old, he had employment in the past and has transferable skills. That there would be no language difficulties if the Applicant was removed to either Niue or New Zealand. Ms Shultz believed that any emotional difficulties that the Applicant faced were not insurmountable.
119. In conclusion, Ms Shultz noted that primary consideration 1 and primary consideration 5 should lead to a finding that the correct and preferable decision is to affirm the decision not to revoke the cancellation of the Applicant's visa.
120. Mr Silva was invited to make any comments in response. Mr Silva noted that with respect to the Applicant's conduct with his brother that there was only one offence where his brother Samuel was a co-offender and to expect the Applicant not to have contact with his brother was unreasonable. Mr Silva noted that with respect to living arrangements that the Applicant would live with his mother in Willmot for a short period of time.
121. With respect to concerns around the Applicant losing employment Mr Silva noted that the Applicant's partner had steady employment in the legal profession and this factor would be a positive in the Applicant's life.
122. Mr Silva noted that the Minister posits that the risk of the Applicant reoffending is not low. Mr Silva reiterated that the Applicant had been in prison and detention for 2 1/2 years in a difficult and challenging environment and that this factor has lowered the risk of the Applicant reoffending going forward. Mr Silva once again stated that the injury caused to the victim in the grievous bodily harm offences was caused by a crowbar and that injury was inflicted by the Applicant's brother Samuel.
123. With respect to the reference in the Applicant's statement to him not being able to put a finger on what led to the road rage incident, Mr Silva posited that the Applicant had been engaging in soul-searching and further positied that the Applicant is on the right path and that overall the Applicant has demonstrated remorse and rehabilitation and the Tribunal should find strong grounds for revocation.

1. The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a substantial criminal record as he has been sentenced to a term of imprisonment of 12 months or more. The Applicant in these circumstances does not pass the character test.
2. To revoke the mandatory cancellation of the Applicant's visa under s 501CA(4)(b) of the Act, the Tribunal must be satisfied that there is another reason, considering Direction No 110, to revoke the cancellation.
3. Direction 110 sets out Primary Considerations and Other Considerations. These are addressed under their respective headings below.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

The Nature and Seriousness of the Applicant's Conduct to Date

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now address.
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
3. The evidence before the Tribunal indicates that the Applicant has a criminal history in Australia that commenced in 2015. It consists of 9 offences which led to conviction.
4. In 2015 the Applicant was convicted of two traffic offences, both of which related to the Applicant driving a motor vehicle whilst his licence was suspended. The Applicant was fined with respect to each of these offences.
5. The next offending occurred on 30 September 2016, when the Applicant was observed by police riding a Yamaha motorcycle in Willmot on the footpath. According to the police facts sheet the police observed that the motorbike did not appear to meet Australian safety standards that would enable a bike to be registered or insured. The Applicant claimed at the time that he was apprehended by police that he had recently purchased the bike from a person in St Mary's and was going to pay the bike off. The police facts sheet indicates that a few days later the Applicant attended the Mount Druitt police station and stated that his initial version of purchasing the bike from a friend was not correct. The Applicant stated that the reason for this was that he had borrowed the bike from a friend, being a young person from Willmot who was present with the Applicant when he was apprehended by the police, and that the Applicant did not want to "dob him in". The facts sheet indicates that this "young person" later attended the police station and was charged with a number of offences.
6. The evidence before the Tribunal indicates that this offending was dealt with by the Mount Druitt Local Court on 28 April 2017. For using an uninsured motor vehicle, namely the motorcycle, the Applicant was fined $650. For not wearing a secure approved helmet the Applicant was fined $800. For riding an uninsured motor vehicle, the Applicant was fined $650. For riding a motor vehicle (motorcycle) whilst not licensed to do so, the Applicant was fined $1000 dollars and the conviction with respect to this offence was quashed. For being in personal custody of a motor vehicle, suspected of being stolen, the Applicant was made the subject of a Section 9 bond for 12 months with the direction that the property be returned to the owner.
7. The next offending that the Applicant engaged with related to driving a motor vehicle whilst license suspended for which the Applicant appeared before the Penrith Local Court on 5 November 2020, and he was subject to a Conditional Release Order for 12 months commencing on 5 November 2020 and concluding on 4 November 2021 with no conviction being recorded for this offence.
8. The evidence indicates that from the first instance of offending grounding a conviction in 2015, until the offending that occurred on 5 March 2021, that the Applicant had been convicted of 6 motor vehicle offences. Up until that point of time there is no police or court history with respect to Applicant being engaged in violence.
9. The evidence before the Tribunal indicates that on 5 March 2021 the Applicant, his brother Samuel and an unknown driver of a BMW were driving in Hassall Grove.
10. Reference to the sentencing comments in the District Court of New South Wales located in the G documents at G8 page 42 indicate that:

"the facts insofar as Thomas Tonga are agreed and the following is taken from the agreed facts. Shortly after 5pm on 5 March 2021, the victim was driving along Luxford Road, Hassall Grove, in a black Ford Territory. This offender and the co-offender Samuel Tonga were travelling on the same road in a dark grey BMW. The victim and the offenders were not known to each other. The victim and the offenders were involved in a minor verbal disagreement after each vehicle cut in front of the other. A short distance later, the victim stopped at a traffic signal in the right-hand lane. The offenders' vehicle, which was clearly driven by another person, similarly stopped in the left-hand lane and slightly behind the victim's vehicle. The following was captured on dash cam footage from the vehicle immediately behind the victim's vehicle in the line of traffic. Thomas Tonga, this offender, got out of the passenger side of the vehicle he was in, and he was wearing a black puffer style jacket. At the same time or approximate to that time, the victim got out of his vehicle and made his way to the rear of the vehicle. This offender Thomas Tonga moved in front of the victim's car and approached the victim from the drivers side. The victim opened the boot and grabbed a broomstick. Samuel Tonga, the co-offender, approached the victim from behind wearing a white shirt. In these agreed facts, he tackles the victim from the left-hand side and punches the victim a number of times. While this is occurring, the victim grabs a crowbar and swings it at Samuel, missing him. This offender Thomas runs around the front of the victim's car and approaches the victim and Samuel Tonga. Both offenders punch and wrestle the victim who is still armed with a crowbar. The victim is thrown to the ground, landing at the side of his vehicle. This offender Thomas Tonga punches the victim to the head and then kicks him to the head while the victim is on the ground. Samuel Tonga grabs the crowbar and strikes the victim twice to the head. Both offenders then get back into the BMW and drive away. The victim appears to throw the crowbar at the BMW as it drives away. The dash cam footage was played before me and I will come to that in a moment. The offence last for about 45 seconds in total. A number of members of the public contacted triple-0 report the assault".

11. Judge Buscombe notes that from his viewing of the dash-cam footage that the victim "has removed a broomstick from his boot. There can be no suggestion that this offender somehow attacked the victim because he was in fear of the victim attacking him or his co-offender with a broomstick".
12. Judge Buscombe turning to his assessment of the objective seriousness of the recklessly cause grievous bodily harm in company offence notes with respect to the Applicant that his "involvement in this offence appears to have been relatively impulsive. The agreed facts are essentially to the effect that what triggered the actions of this offender, and the co-offender was a minor verbal disagreement after each vehicle cut in front of the other. The offence is one which is often classified as a road rage incident, something that happens far too frequently in our community. While the offence was of short duration, some 45 seconds, the offence was a particularly violent one....The offender Thomas Tonga approached the victim by running across the front of the victim's car and around the driver's side. He appears to be trying to surprise the victim with his attack. He, together with the co-offender, wrestle and throw the victim to the ground. While the victim is on the ground, it is this offender who punches and kicks the victim to the head. It is the co-offender who struck the victim twice to the head with a crowbar, having wrestled it off the victim. Given the opinion of Dr French contained in the agreed facts for this offender, I could not find beyond reasonable doubt that it was this offenders blows that caused the more significant of the head injuries suffered by the victim, and I have had some regard to that in my assessment of the objective seriousness of his offence". Judge Buscombe went on to find that he considered "the objective seriousness of the offence to be a little below a notional mid-range offence".
13. As a consequence of a police investigation with respect to the 5 March 2021 offending, police attended the Applicant's residence in Penrith on 13 April 2021, at which time the police executed a search warrant in relation to the grievous bodily harm offence, and the police forced themselves into the Applicant's premises. Judge Buscombe notes that "the offender was seen to be leaving the bathroom, he was cautioned and placed under arrest. When the police searched the offender's home, they located four clear bags containing a substance later analysed to be 312.6 grams of methylamphetamine with a purity of 79%, which was sitting on top of the T-shirt in the bathroom. Those facts essentially constitute the supply prohibited drug offence. One ripped clear bag in the bathroom sink contained a residue of the crystalline substance. There was a bag in the kitchen containing $123,700. There was a banknote counter. There were three mobile telephones, the particulars of which are in the agreed facts. Those facts are what support the other two offences".
14. Judge Buscombe with respect to the drug offending notes that "the offender did not give evidence on sentence so this account of his involvement in those offences could not be tested under cross-examination. The presence of $123,700, a banknote counter and three mobile phones results in me being unable to find on the balance of probabilities that the offender's role in the offences was as limited as he asserted to others and is recorded in the subjective material. As is often the case in such cases, I am unable to have any degree of certainty about the offender's role in the drug supply offence".
15. Judge Buscombe assessed "the objective seriousness of the supply prohibited drug offence as being below a notional mid-range offence insofar as objective seriousness is concerned but not at the bottom of the range. In relation to the proceeds of crime offence, a significant sum of money was involved. I assess it also to be below a notional mid-range offence but not at the bottom of the range".
16. Judge Buscombe noted that "no oral evidence was called from or on behalf of the offender, so his assertions as to why he engaged in the offending and in relation to his commission of the drug and proceeds of crime offences remain untested".
17. Judge Buscombe noted that the Applicant told the psychologist Mr Albassit that "he agreed to store the drugs and money for a few nights on the basis that he would receive financial compensation for his involvement".
18. Judge Buscombe noted that the Applicant "has a limited criminal history, essentially some relatively minor traffic offences, and there are no prior offences of violence or drug-related offences. His lack of criminal record entitles him some leniency on sentence".
19. Judge Buscombe noted that the Applicant was still relatively young and that he had a limited criminal history. Judge Buscombe noted that the Applicant "has a supportive family. I consider that in the circumstances he has good prospects of rehabilitation. Much will depend upon his ability to stay away from prohibited drugs in the future. Given the number of offences within a short period of time and his issues with prohibited drugs, I'm not able to make a finding that he is unlikely to reoffend. This will be his first time in custody, and while he has good prospects for rehabilitation, those prospects for rehabilitation will be enhanced if he has a longer period on parole. I will therefore make a finding of special circumstances when fixing the non-parole period".
20. The Tribunal notes that the offending of 13 April 2021 was the first instance of drug offending appearing on the Applicant's criminal profile.
21. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
22. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonable and correctly Applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant's offending.[1]

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; > > (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; > > (i) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); > > (ii) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention

1. 306. 307. 308. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the impact of offending on any victims, where this information is available and where an Applicant has been afforded procedural fairness.
2. The evidence before the Tribunal indicates that the incident of 5 March 2021 was the first incidence of violent offending that the Applicant has engaged in. The Tribunal agrees with the assessment of Judge Buscombe in his sentencing comments and as is evidenced from the Tribunals viewing of the incident that the Applicant's involvement in the offence was "relatively impulsive". The Tribunal is further satisfied from the evidence before it that the Applicants involvement in the incident was that he threw a number of punches and kicks at the victim whilst the victim was on the ground. The Tribunal finds on the basis of the evidence, namely the findings of Judge Buscombe, that the Applicant's brother Samuel wrestled the crowbar from the victim and then struck the victim twice on the head. The Tribunal finds on the basis of the evidence from Dr French, trainee neurosurgeon, presented in the District Court, that the blow to the victim's head with the crowbar caused the significant head injury to the victim and caused the deep skull fracture which required surgical intervention. The Tribunal finds that the evidence before it cannot lead to a finding on balance that it was the Applicant's blows to the victim's head that caused the more significant head injuries suffered by the victim. Judge Buscombe in the District Court found that he "could not find beyond reasonable doubt that it was this offender's blows that caused the more significant head injuries suffered by the victim" and the Tribunal finds that there has been nothing presented at review which could cause it to depart from those judicial findings which were made Applying the criminal standard of proof "beyond a reasonable doubt".
3. The Tribunal is of the view that any assault perpetrated by one person upon another irrespective of the severity of the assault, would have a clearly tangible impact on the victim of the assault. There is no doubt that the Hassall Grove offending will have a life-long impact on the victim who as a result of the offending had to spend a week in hospital and had to undergo two surgeries and had to have a titanium plate fitted into his head which will act as a permanent reminder of the assault. There is no victim impact statement or other types of evidence before the Tribunal with respect to the impact of the offending however, the Tribunal finds that it would be profound.
4. The Tribunal has had regard to the report by Mr Sam Albassit, psychologist dated 7 November 2022 which was prepared for the purposes of the Applicant's District Court sentencing.
5. In the report located in the tender bundle at TB 41 page 151 Mr Albassit notes the following:

"in respect of the reckless GBH offence, I note that Mr Tonga expressed feelings of hypervigilance. He stated that there was a dispute whilst driving with his brother and an acquaintance which escalated to a physical altercation. He stated that whilst he approached the driver of the other vehicle he noticed that the victim was arming himself and feared it was a firearm or serious weapon so he ran in the other direction. At this time, his brother had engaged the male physically and he engaged the male in a physical altercation. The impulsivity that attaches to his underlying mental health issues presented itself in this offending".

6. Mr Albassit noted at TB41 page 156 that with respect to the road rage incident that Mr Tonga;

"reported significant remorse and contrition for his actions and the victim from the road rage incident. He felt extremely bad for the victim and the injuries he sustained. When Mr Tonga was asked about what he thought of his offending behaviour, he acknowledged that it was undeniably wrong to have committed the offences, was appalled by his actions, and expressed regret with remorse. He acknowledges that his behaviour was reckless, impulsive, 'stupid' and his actions would have had significant repercussions on the wider community and upon the victim in the reckless GBH offence. Mr Tonga said he has never been in trouble with the Police for matters of this gravity. Mr Tonga's comments and attitude towards his offending behaviour reflected a person who is aware of his behaviours, has taken responsibility for his actions and wanted to make significant changes. Mr Tonga discussed the relationship between the significant trauma, his history of illicit drug use and his offending behaviour and demonstrated an insight into the link between them".

7. Mr Albassit at TB41 page 156 point 44 notes that the Applicant's "willingness to engage during the assessment and subsequent consultations, and the high level of insight in relation to the consequences of his actions lends itself that Mr Tonga's prospects for rehabilitation is positive should the Court provide him with the opportunity".
8. The Applicant in his statement of 11 February 2025 has questioned why he engaged in the grievous bodily harm offence. The Applicant in his statement advised that he had asked himself this question many times "why would I assault somebody for a trivial thing that happens on the road so frequently in one's life. That is when we get into the car to drive, there are many things that can happen in relation to other drivers on the road. It is easy to get into dispute because either inadvertently or sometimes even deliberately some drivers would interfere in your driving. This could happen by someone cutting in front of you, back tail you, sound horn at you. In fact, you might even do it yourself to other drivers foolishly. But I realise that the wise thing is not to get into confrontations because life is bigger than that and it is not worth wasting time with fights with other drivers. Also, if I do something wrong to another driver then the best thing is to apologise and get on with it without blowing it out of proportion". The Applicant states "I realise that it was stupid, dumb and unforgivable. If someone had assaulted my sister, my brother or my mother under similar circumstances I would been so appalled and would find it difficult to understand why they did it and be quite angry. But I did that very same thing, so the only way I could resolve that is to apologise to Ruki Watane (the victim) for what I did. I don't know that I would ever get a chance to ask for his forgiveness. Ultimately that may be the only way to put this issue behind me for good. Further I think that it was also selfishness on my part because we all share the roads and highways and must find a way to use it without fighting over it as if it is our own territory".
9. With respect to the drug offending the Applicant's statement of 11 February 2025 states at point 14 that he did not want to go into details claiming the privilege against self-incrimination. The Applicant states that "I can see the problem the Australian government face because it must protect its citizens including me, or my family members and relatives. It is paradoxical while you want safety for yourself and your family and at the same time ruin it for others. I also understand that it is a privilege to live in Australia and that I have to deserve it. So, I realise that if I ever get back into drugs again, that will take me to prison wherever I may be living at that time".
10. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen's offending and whether there is any trend of increasing seriousness.
11. The motor vehicle offences that the Applicant engaged in between 2015 and 2020 were described by Judge Buscombe in his sentencing comments as "some relatively minor traffic offences".
12. The evidence before the Tribunal indicates that the Applicant's offending in March and April 2021 saw a change in the pattern of offending away from "relatively minor" motor vehicle offences to a first offence of violence and a first offence of supply prohibited drug, commercial quantity. It is this offending that led to the Applicant's imprisonment. The evidence before the Tribunal is that there was no evidence of a trend of increasing seriousness in the Applicant's offending. The offending went from the category of "relatively minor" offending straight into the category of more serious offending without there being evidence of a trend of increasing seriousness over time.
13. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant's repeated offending.
14. The impact of the Applicant's March and April 2021 offending has led to the Applicant's incarceration, his removal from his partner, and his absence from the life of his daughter, his removal from his family members with whom he is close and his inability to contribute financially to his daughter's upkeep.
15. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
16. There is no evidence that the Applicant has provided false or misleading information to the Department.
17. Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen's migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen's favour.
18. There is no evidence that the Applicant has offended since being formally warned about the consequences of further offending in terms of the non-citizen's migration status.
19. Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
20. There is no evidence that the Applicant has committed an offence, or other serious conduct, in another country.
21. The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh against the revocation of the cancellation of the Applicant's visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

1. Paragraph 8.1.2(1) provides that, in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
2. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
3. Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

1. information and evidence on the risk of the non-citizen re-offending; and
2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being Applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

1. Clearly if the Applicant were to engage in conduct exhibited during the road rage incident in March 2021 there would be a risk of harm to the Australian community. Conversely if the Applicant were to engage in conduct with respect to the April 2021 drug related offending there would also be a risk to the Australian community.
2. The evidence before the Tribunal indicates that there are a number of factors that would mitigate the risk of the Applicant re-offending.
3. The first of these is that the Applicant has a partner with whom he has been in a relationship with since 2022 and which according to the evidence of his partner Savannah Crichton is a serious one and one that she envisages will proceed to marriage and children in the future. The Applicant's partner works in the legal sector as an Executive Assistant for a corporate law firm and clearly impressed with her skills and abilities the firm wishes to assist her in studying towards the obtainment of legal qualifications. The Applicant is committed to his relationship with his partner and to a future life together. Ms Crichton advised that in the event that the Applicant's visa remained cancelled, and he had to return to New Zealand that her preference would be to remain in Australia due to her employment and study potential, her closeness to her godson, and what she perceives as being comparatively less opportunity available to her in New Zealand. The Tribunal is of the view that these factors would act as a strong disincentive to re-offending.
4. Secondly, the Applicant has a daughter JT, who is very close to the Applicant. JT is 12 years old and hence she is at a very influential stage of her life being on the cusp of her teenage years and early adulthood. The evidence before the Tribunal indicates that the Applicant has been a constant presence in the life of his daughter, despite the fact that the Applicant and the mother of his daughter, Ms Sautia, have not been together since JT was a young child.
5. Ms Sautia gave direct evidence to the Tribunal confirming the closeness of the relationship between JT and the Applicant. In her statement dated 11 February 2025, Ms Sautia notes that the Applicant's daughter has not been herself since the Applicant was imprisoned and held in immigration detention. She noted that the Applicant worked with his daughter as her personal coach in the field of rugby which has led to JT being selected to attend a selective sports high school in Western Sydney, based on her special sporting skills. Ms Sautia notes that if the Applicant is released from detention that he will be able to continue to assist his daughter with her sports career and with her emotional well-being. Ms Sautia notes in her statement that if the Applicant is released into the community that JT would like to live with the Applicant on a primary basis and that the Applicant would like his daughter to also live with him on a primary basis as well. Ms Sautia is supportive of this. Ms Sautia notes in her statement that the Applicant and his daughter have a good bond, they speak over the phone most days and that in the event that the Applicant was deported, Ms Sautia expressed concern about her daughter's mental health and well-being. Ms Sautia notes "I know how deeply Thomas loves JT and I believe that he would do anything to make her happy and give her a stable life. I believe that it is a strong motivation for him to put the mistakes of the past and turn a new page in life".
6. The Applicant's daughter JT provided a statement to the Tribunal dated 10 February 2025. In her statement she describes how close she is to her father. She notes that the Applicant has always provided support to her in every possible way but particularly with respect to her rugby career. She advises that her father was her personal coach before he went into prison and that he would regularly pick her up from school, help her practice her rugby, attend training sessions, and provide encouragement. The Applicant's daughter states that because of the Applicant's support she was able to get a place a selective sports high school in Western Sydney that is difficult to get into. The Applicant's daughter describes herself as a "daddy's girl" she stated that she loves her mother very dearly and that her mother is taking good care of her, however, that if her father is released into the community that she wants to live with him because she feels happy with him and she describes the Applicant as being the most important person in her life. The Applicant's daughter states "I don't think that I could imagine my dad being sent away to New Zealand, that will destroy my life, and it will be hard for me to live happily after that".
7. The Tribunal finds that the preservation of the Applicant's relationship with his daughter and his concerns about the mental health impacts on his daughter in the event that he was to be deported would act as a strong incentive for the Applicant not to engage in future offending.
8. The evidence before the Tribunal indicates that the Applicant has a number of close family members resident in Australia that include his mother, siblings, and a number of nieces and nephews with whom he is close. A number of the Applicant's family members have provided statements in support of the Applicant which have described the close relationship that the Applicant maintains with his family.
9. Ms Schultz on behalf of the Minister posited that when the Applicant engaged in the 2017 motorcycle offending, that statements were provided to the Magistrate in the Mount Druitt Local Court from the Applicant, indicating that his family would act as a protective factor with respect to him engaging in future offending. Ms Schultz noted that despite this the Applicant went on to commit the offending in March and April 2021 and that the protective factors of his family did not act as a disincentive. The Tribunal notes that the Applicant up until his engagement in the March and April 2021 offending had never experienced a term of imprisonment. It is clear that this term of imprisonment and ongoing immigration detention has had a profound impact on the Applicant. The Applicant's family members have recognised this impact and the Applicant has stated "I have spent numerous hours mulling over an (sic) agonising what has happened in a short period of time that resulted in me ending in prison and then be (sic) detained with the real possibility of deportation". The Tribunal finds that the Applicant's imprisonment and his immigration detention has led to an extended period of deep reflection. The Applicant gave evidence that he is close to his mother. In the Applicant's statutory declaration of 11 February 2025, the Applicant acknowledges the pain that he had caused his mother with respect to his 2021 offending. The Applicant states that if given a chance to live in the community that he wants to be there to provide support to his mother and that he wants his mother to be "rewarded for all that she has done for the family".
10. The Tribunal finds that the closeness of the relationships that the Applicant has with his family members will, post his imprisonment and immigration detention, act as protective factors that will mitigate the risk of the Applicant engaging in further offending.
11. Mr Albassit, psychologist in his report of 7 November 2022 notes at point 46 that "Mr Tonga indicated that his experiences of custody also had a salutary and edifying impact upon him and has made him determined not to return there in the future".
12. Mr Albassit also notes at point 51 of his report that "I have provided the Court with a comprehensive treatment plan that will negate the risks associated with the court's concerns in relation to re-offending, and the necessary rehabilitation required while providing efficient and intensive treatment to treat the psychiatric and psychological conditions outlined above".
13. Judge Buscombe in his sentencing comments at G8 page 63 notes that "the sentencing assessment report records the offender demonstrating a plausible degree of insight into his offending, accepting that the level of violence inflicted on the offender (as said) was undeserved and the medical risks associated with that violence. The sentencing assessment report assess this offender as having a medium to low risk of reoffending."
14. As has been discussed Judge Buscombe in his sentencing comments stated "the offender is still relatively young and has a limited criminal history. He has a supportive family. I consider that in these circumstances he has good prospects of rehabilitation. Much will depend upon his ability to stay away from prohibited drugs in the future. Given the number of offences within a short period of time in his issues with prohibited drugs, I am not able to make a finding that he is unlikely to reoffend. This will be his first time in custody, and while he has good prospects for rehabilitation, those prospects for rehabilitation will be enhanced if he has a longer period on parole".
15. The evidence indicates that the Applicant has been drug free since he was arrested with respect to the 2021 offending. The Applicant gave evidence that in the 1 year and 4 months that he spent in the community whilst awaiting sentencing in the District Court with respect to his 2021 offending that he did not use drugs. During the time the Applicant was in prison he was drug tested on a number of occasions and was found to be drug free. The Tribunal notes the one incident when the Applicant was asked to produce a urine sample in prison but was not able to urinate due to 'stage fright" having being asked to produce urine in a public place. The rules are if you fail to submit to the urine request you fail the drug test. The Applicant explained this by saying that this was his first drug test in prison and he was unaware that you could turn around away from persons to assist with urination or you could turn on a tap to encourage urine flow. The Applicant engaged with Mr Albassit in 2022 and Mr Albaissit provide a treatment plan for the Applicant to ensure that he remains abstinent from drug use. The Applicant has engaged in a number of courses addressing his drug issues whilst he has been in custody including Narcotics Anonymous (NA) courses which he attended over a 19 month period and evidence was provided that the Applicant facilitated one NA session and was commended for his oversight of that session. The Applicant was also described as actively engaging in the NA sessions that he attended.
16. The reports from prison and detention that have been referred to in the course of the review indicate that since the Applicant's imprisonment and detention that he has been polite and co-operative.
17. In addition to these factors, which in the view of the Tribunal, act to mitigate risk, the Applicant in his statutory declaration of 11 February 2025 provided evidence to the Tribunal with respect to the factors that he had put in place with respect to risk mitigation. The Applicant in this respect stated that he had engaged in lifestyle programs, core skills programs, and information technology course, construction and food safety courses and NA.
18. The Applicant stated that as a consequence of attending learning programs in prison that he had developed strategies to control his emotions and learn techniques to avoid conflict situations such as breathing techniques. The Applicant stated that he had benefited by talking to a psychologist and opening-up about his feelings, his past trauma and how to deal with the trauma.
19. Evidence was provided to the Tribunal and review indicative of the fact that the Applicant if released into the community had been offered prospective employment with scaffolding business in Sydney.
20. Evidence before the Tribunal indicates that the Applicant was granted Supreme Court Bail on 8 July 2021. The evidence indicates that the Applicant lived in the community for 16 months whilst on bail before being sentenced to a term of imprisonment. He did so without incident. This in the view of the Tribunal is further evidence that mitigates future risk.
21. The Applicant's criminal offending in March and April 2021 was serious, and with respect to the victim of the GBH offence it could have led to a tragic outcome for that victim and indeed for the Applicant in terms of the impact upon his life going forward. The drug offending has a substantial societal impact, and the Applicant has closely reflected on this in his declarations to the Tribunal and in his discussion with Mr Albassit.
22. The Tribunal has had regard to the sub-paragraphs of paragraph 8.1.2 of the Direction, in their totality and had regard to the factors that mitigate risk, the Tribunal finds that these factors weigh moderately against the revocation of the cancellation of the Applicant's visa.

1. Primary Consideration 1 weighs moderately against the revocation of the cancellation of the Applicant's visa. The Tribunal notes that this consideration alone is not of itself determinative.

1. "Family violence" is defined in paragraph 4(1) of the Direction to mean violent, threatening, or other behaviour that coerces or controls a member of the person's family or causes that family member to be fearful.
2. There is no evidence of the Applicant engaging in family violence and this fact is conceded by Ms Schulz on behalf of the Minister.

1. The Tribunal finds that some no weight should be given to Primary Consideration 2 as it is not a relevant consideration in the circumstances of this case.

PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

1. The Tribunal must consider any impact of its decision on the Applicant's immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2. Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
3. Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
4. The Applicant came to Australia with his family as a 3-year-old. The Applicant completed his primary schooling and his secondary schooling in Australia. At 17 the Applicant's then partner, Ms Sautia, fell pregnant. The Applicant gave consideration to leaving school, but he ended up completing the HSC. After completing school the Applicant worked in factory jobs in order to support his partner and baby daughter.
5. The evidence before the Tribunal indicates that the Applicant's mother is an Australian citizen and has resided in Australia since 1997. The Applicant's daughter is an Australian citizen and was born in Australia on 22 July 2012. The Applicant's five siblings are all resident in Australia. The Applicant has a number of nieces and nephews in Australia with whom his is close, some of whom are minors.
6. The evidence before the Tribunal indicates that the Applicant has no close relatives in New Zealand or in Niue.
7. The evidence indicates that the Applicant's father passed away in 2022, as a consequence of diabetes, dementia and kidney failure. The Applicant's mother Lata in her statement dated 11 February 2025 notes that the Applicant had provided her with close support and companionship after the death of her husband.
8. The Respondents SFIC concedes that given the Applicant has lived continuously in Australia for an extended period and given the fact that all of his close family members are resident in Australia that "primary consideration 3 weighs in favour of revocation of the visa cancellation decision".
9. The Tribunal finds, based on the evidence before it, that the Applicant has been resident in Australia from age 3 in 1997, to date, a period of 27 years. The Applicant's mother (an Australian citizen) and 5 siblings are all resident in Australia. The Applicant's 12-year-old daughter is an Australian citizen and resides in Australia as does her mother Ms Latia, with whom the Applicant maintains cordial relations. The Applicant's partner Ms Crichton is a permanent resident of Australia and wishes to remain in Australia to pursue her career ambitions. It is clearly evident that the Applicant is close to his immediate family and particularly close to his daughter. The Tribunal finds that all these factors when cumulatively considered lead to a finding that primary consideration 3 weighs strongly in favour of revocation of the Applicant's visa.

1. Primary Consideration 3 weighs strongly in favour of the revocation of cancellation of the Applicant's visa.

PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

1. Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
2. Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
3. Paragraph 8.4(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
4. The Applicant has a 12 year old daughter who is an Australian citizen. The evidence indicates that the Applicant has been a good father to his daughter. The evidence indicates that despite the fact that he and his daughters mother Ms Sautia split up when their daughter was an infant, that the Applicant been intrinsically involved in all aspects of his daughter's life and upbringing. The Applicant has nurtured his daughters love of rugby and has coached her and encouraged her and the evidence indicates that JT has been accepted into a selective sports high school in Western Sydney. The evidence indicates that the Applicant's daughter has expressed to her mother, Ms Sautia, that if the Applicant is released into the community that she would like to reside full time with her father. Ms Sautia is happy with this proposal and expressed no reservations about the arrangement.
5. Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).
6. The evidence before the Tribunal indicates that the Applicant has been actively involved in the co-parenting of his daughter until the time of his imprisonment and immigration detention. The Applicant will re-assume an active role in the life of his daughter is he is released into the community as arrangements indicate JT will live full time with her father. The evidence indicates that the Applicant and his daughter speak regularly since he has been detained.
7. Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
8. The Applicants daughter is 12 and there is a lengthy period of time before she reaches adulthood. The evidence is indicative of a strong bond between the Applicant and his young daughter. The evidence indicates that the Applicant wishes to play an active role in her life going forward and this is evidenced by the arrangements for JT to reside full time with her father if he is released back into the community.
9. Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
10. There is no evidence before the Tribunal that the Applicant's daughter has been negatively impacted by the Applicant's conduct apart from her being distressed and missing her father greatly when he was imprisoned and then held in immigration detention.
11. The evidence is that if the Applicant is released into the community he will reside with his mother initially until he gets back on his feet. The Applicant has an offer of scaffolding work if he is released into the community which is confirmed by a prospective employer Mr Tiatia.
12. Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways.
13. The evidence before the Tribunal indicates that the Applicant's daughter will miss her father greatly and the emotional, physical and prospective financial support he provides to her if he is removed from Australia. In her statement JT has stated that if her father is removed to New Zealand, it would destroy her life and it would be hard for her to live happily after that.
14. Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
15. The Applicant's ex-partner Ms Sautia currently fulfills a parental role for the couple's daughter. The evidence before the Tribunal indicates that the Applicant and Ms Sautia are committed to the co-parenting of JT going forward. In addition to this Ms Sautia is amenable to JT living with her father on a full-time basis with JT having access to Ms Sautia and her 3 step-siblings though weekend visits and the like.
16. Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
17. The Applicant's daughter as noted provided a statement to the Tribunal which is dated 10 February 2025. In her statement JT provides her clear views with respect to the potential removal of her father from Australia and the impact that this will have on her life. In that statement she says "I don't think that I could imagine my dad being sent away to New Zealand, that will destroy my life, and it will be hard for me to live happily after that". She also states that "when my father is released, I want to live with him because I feel happy with him, and he is the most important person in my life".
18. Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
19. There is no evidence that the Applicant's daughter has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant or evidence that she has been abused or neglected by the non-citizen in any way whether physically, sexually or mentally.
20. Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
21. There is no evidence that the Applicant has engaged in family violence.
22. Considering the totality of the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision strongly weigh strongly in favour of the revocation of cancellation of the Applicant's visa.

1. Primary Consideration 4 weighs strongly in favour of the revocation of cancellation of the Applicant's visa.

PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

1. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws whilst in Australia.
2. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a) acts of family violence; or

(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f) worker exploitation.

1. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community Apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
2. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

3. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Direction.
4. Paragraph 8.5(4) contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which a decision maker is required to have regard to.
5. In assessing the weight attributable to Primary Consideration 5, the Tribunal has had regard to the following.
6. From 2015 the Applicant committed what has been described by Judge Buscombe in the District Court of New South Wales as a range of relatively minor traffic offences. In March 2021 the Applicant engaged in the road rage incident along with his brother Samuel leading to a conviction for grievous bodily harm. In April 2021 the Applicant was involved in a supply prohibited drug offence at a commercial quantity and also dealing with the proceeds of crime.
7. The Applicant has abstained from drug use since he was incarcerated and the Applicant has given undertakings of his intention to remain drug free going forward.
8. The Tribunal finds that any form of assault is abhorrent and is unacceptable.
9. The Tribunal finds that the Applicants offending in Hassall Grove in March 2021 was serious and this is reflected in the fact that the Applicant was sentenced to a term of imprisonment with respect to this offence.
10. Conversely the Tribunal finds that the Applicants offending in April 2021 for drug related offending including supplying a prohibited substance at a commercial quantity and possessing the proceeds of crime is serious.
11. With respect to the 2021 offending the Applicant spent an extended period in prison before being paroled and the Applicant has given evidence that this was both a confronting experience and is one that he would not wish to repeat.
12. The Australian community expects non-citizens to obey Australian laws whilst they are resident in Australia. The Applicant engaged in criminal conduct in 2021 that breached this expectation. The Tribunal finds that the risk of further offending has been mitigated by a range of factors that have been extensively canvassed in the Tribunals consideration of risk above.

1. On balance the Tribunal finds that some weight should be given to Primary Consideration 5 against the revocation of the cancellation of the Applicant's visa.

1. It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.

1. There is no evidence before the Tribunal of any non-refoulement obligations that may arise in this matter, or that it would be impracticable to remove the Applicant to New Zealand. Accordingly, the Tribunal does not consider this consideration to be relevant.

1. The Applicant is 30 years old and is a relatively young man who has worked predominantly in the factory and labouring sector. At one point of time the Applicant was hoping to pursue a career in rugby and was playing for a feeder team with respect to this objective.
2. The Applicant has resided continuously in Australia since he was 3 years old. The Applicant's mother, brothers, and sister, his daughter and his partner and his nieces and nephews all reside in Australia.
3. The Applicant's family is a close knit one.
4. The evidence is such that the Applicant would not suffer any language or cultural barriers in New Zealand if he were to return there. New Zealand offers medical and economic support systems comparable to those available in Australia and there is nothing to suggest that those systems would not be available to the Applicant if he returned to New Zealand.
5. The Tribunal is satisfied that the Applicant would likely experience some difficulties in establishing employment in New Zealand. The Tribunal finds that the removal from the Applicant's own family, his immediate family and indeed his extended family in Australia would act as a significant impediment to his rehabilitation and ongoing self-improvement moving forward.

1. There is evidence before the Tribunal that the Applicant has been offered work as a scaffolder in Sydney if he is released into the community. There is no evidence before the Tribunal that indicates that the removal of the Applicant from Australia would have an adverse impact on Australian business interests. Accordingly, the Tribunal does not consider this consideration to be relevant.

1. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant's visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
2. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant's visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
3. Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
4. In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:

(a) Primary Consideration 1 weighs moderately against the revocation of the cancellation of the Applicant's visa and as noted this finding has been made on the basis of a range of factors canvassed in the decision record that in the view of the Tribunal mitigate risk. The Tribunal notes that this consideration is not of itself determinative. > > (b) Primary Consideration 2 is given no weight against the revocation of the cancellation of the Applicant's visa as it is not relevant as the Applicant has not engaged in family violence. > > (c) Primary Consideration 3 weighs strongly in favour of the revocation of the cancellation of the Applicant's visa. > > (d) Primary Consideration 4 is weighs strongly in favour of the revocation of the cancellation of the Applicant's visa. > > (e) Primary Consideration 5 is given some weight against the revocation of the cancellation of the Applicant's visa. > > (f) To the extent that they are relevant, the Other Considerations weigh in favour of the revocation of the cancellation of the Applicant's visa.

5. For the stated reasons, the Tribunal gives moderate weight to Primary Consideration 1 and the protection of the Australian community with respect to the cancellation of the Applicant's visa. No weight is apportioned to Primary Consideration 2. Strong weight is given to Primary Consideration 3 with respect to the revocation of the Applicant's visa. Strong weight is given to Primary Consideration 4 with respect to the revocation of the Applicant's visa. Primary Consideration 5 is given some weight against the cancellation of the Applicant's visa. The Tribunal gives weight to other considerations with respect to the revocation of the Applicant's visa. Cumulatively considering the Primary Considerations and the Other Considerations the Tribunal finds that the cancellation of the Applicant's visa should be revoked.
6. The Tribunal has given careful consideration to all of the Primary Considerations and those of the Primary Considerations that are given primacy and the weight that should be apportioned to these considerations. The Tribunal has also given careful consideration to the Other Considerations. The Tribunal finds that having regard to the totality of the evidence and with respect to those considerations, that the cancellation of the Applicant's Subclass 444 visa should be revoked.
7. Accordingly, the Tribunal is satisfied that the cancellation of the Applicant's visa should be revoked.

1. The decision under review is set aside and in substitution the cancellation of the Applicant's visa is revoked.

[1] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].