1. Mr Fagalilo was born in NZ.[7] He emigrated with his parents and siblings in December 1997, aged 7.[8]
2. Mr Fagalilo's criminal record is extensive. It is summarised in Annexure A. The Tribunal has ignored the records before it regarding the existence of any juvenile record.[9]
3. The Applicant was warned in 2010-2011, and following his conviction and sentence for two counts of assault with intent to rob in company committed on 10 January 2009, that his permission to remain in this country may be cancelled if he committed further offences.[10] He claimed not to have received this warning.[11] However, he was no doubt aware of the potential to be expelled from this country if he engaged in criminal conduct because one of his brothers was the subject of a visa cancellation, and the Applicant was said to have 'stepped up' to help his brother's partner and children during that time.
4. In 2016, Mr Fagalilo met the mother of his minor child, Ms MR (or the ex-partner). Their son was born in March 2018.[12] Ms MR has three other children to a prior relationship, and they reportedly consider the Applicant as their stepfather.
5. Mr Fagalilo's special category visa was mandatorily cancelled on 11 May 2018 under s 501(3A) of the Migration Act.[13] He was notified of this decision and invited to make representations seeking revocation of it.
6. The Applicant made the necessary representations seeking revocation on 11 June 2018.[14]
7. Following a jury trial in 2019, Mr Fagalilo was convicted of further offending he committed in November 2017, and he was sentenced, in February 2020, to an aggregate sentence of 61 months' imprisonment, backdated to 4 March 2018.[15]
8. Whilst in prison, Mr Fagalilo committed several 'Correctional Centre Offences' between June 2018 and June 2020.[16] Despite that institutional misconduct, Mr Fagalilo was released on a parole order on 3 September 2021. He was taken into immigration detention.[17]
9. On 3 January 2022, Mr Fagalilo, and four (4) other detainees, assaulted three (3) Detention Services Officers at Villawood Immigration Detention Centre, in a brawl started by one of them (not the Applicant).[18]
10. On 12 May 2023, the Applicant was convicted, on his own confession, of causing harm to a Commonwealth official arising from that brawl.[19] He was sentenced to 20 months' imprisonment, backdated to 2 March 2022, execution of which was to be suspended upon the Applicant entering a Recognizance Release Order (RRO) with security in the sum of $250, and a condition that he be of good behaviour for 20 months.[20]
11. The Applicant requested his removal from Australia in writing thereafter.[21] He departed on 16 June 2023.[22]
12. In NZ, Mr Fagalilo has reportedly been convicted of possession of cocaine in Auckland. He is presently living and working in Wellington. He told the Tribunal that he has not had any further brushes with the law since being in Wellington. The parties did not put a NZ Criminal History before the Tribunal.

1. The parties appeared before the Tribunal on 11 and 12 August 2025 by videolink. The Applicant was represented by Mr Ehimudiamen of Lucky Iyare & Associates. The Respondent was represented by Mr Sharma of HWL Ebsworth Lawyers.
2. The following documents were marked as exhibits:

(a) Joint Hearing Bundle, including the parties' respective Statement of Facts, Issues and Contentions (752 pages) (Exhibit 1); and > > (b) Transcript of Proceedings (sentencing remarks), R v Benjamin Peniamina Fagalilo (District Court of New South Wales, 2022/44137, Shead SC DCJ, 12 May 2023) (33 pages) (Exhibit 2).

3. At the substantive hearing of the review, the Applicant was advised, in simple terms, of his right to invoke the privilege against self-incrimination prior to his giving evidence.[23]
4. The Tribunal took oral evidence from the Applicant, his parents, three brothers, ex-partner, one sister-in-law (SIL), that SIL's sister, and a friend.

1. The question for determination by the Tribunal is whether the decision not to revoke the mandatory cancellation of Mr Fagalilo's special category visa is the 'correct or preferable decision' on the material before the Tribunal.[24]
2. Section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:

(a) the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and > > (b) the decision-maker is satisfied that: > > > (i) the Applicant passes the character test (as defined by s 501); or > > > > (ii) there is another reason why the mandatory cancellation should be revoked.

3. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582, the majority of the High Court described this section of the Migration Act as conferring 'a wide discretionary power' to revoke a mandatory cancellation if the decision-maker (whether the Minister, their delegate, or the Tribunal on review of a delegate's decision) is satisfied that there is 'another reason' why the cancellation should be revoked.[25] The majority held that the assessment of whether there was, in fact, 'another reason' was to be undertaken by reference to the representations made by the Applicant.[26]
4. In reviewing decisions of this kind, the Tribunal must comply with Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) given by the Minister under s 499(1) of the Migration Act.[27] This is a legislative constraint on the Tribunal's process of reasoning.[28] However, as the Full Court identified in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582,[29] the principles stated in Drake (No 2)[30] regarding the application of governmental policy, and the Tribunal's ability to depart from it where appropriate, remain applicable.
5. Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must 'take into account' the factors identified in cls 8 and 9 of the Direction (where relevant) in deciding the application.[31] In this review, those relevant factors are:

(a) the protection of the Australian community from criminal or other serious conduct; > > (b) the strength, nature and duration of ties to Australia; > > (c) the best interests of minor children in Australia; > > (d) the expectations of the Australian community; > > (e) the legal consequences of the decision; and > > (f) impact on Australian business interests.

1. The Applicant was notified of the mandatory cancellation decision by hand on or about 11 May 2018 and whilst he was in New South Wales (NSW) custody.[32] This notice complied with requirements of ss 501CA(3) and 501CA(3A) of the Migration Act, read with reg 2.55(3)(a) of the Migration Regulations.
2. Regulation 2.52(2)(b) provides that any representations seeking revocation of a decision of that kind must be made to the Minister within 28 days after the person is given notice of the mandatory cancellation.
3. Regulations 2.52(3) to 2.52(6) set out the way representations are to be made, including that they are to be in English (or accompanied by translation) and that they must include specified information, such as personal identifiers and 'a statement of the reasons on which the person relies to support the representations.'
4. The Applicant made representations seeking revocation of the cancellation decision, within the specified timeframe.[33] These are dated 15 May 2018 and seem to have been 'dispatched', within the prison system, within the permissible envelope of 28 days from notification. They were sent to the Minister's Department by facsimile on 11 June 2018.[34]
5. These representations complied with the content requirements of the Migration Regulations.
6. Accordingly, the Tribunal is satisfied that Mr Fagalilo made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.

1. The Tribunal must decide whether the Applicant passes the character test as defined by s 501 of the Migration Act.[35] Failure to pass the character test arises as a matter of law.[36]
2. Section 501(6)(a) of the Migration Act sets out that a person does not pass the character test if 'the person has a substantial criminal record (as defined by subsection (7))'. The term 'substantial criminal record' includes when 'the person has been sentenced to a term of imprisonment of 12 months or more_'_[37] and when they have been 'sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more'.[38]
3. It was common ground that Mr Fagalilo does not pass the character test by virtue of the sentences of imprisonment imposed by the NSW Courts on various dates.[39]
4. The Tribunal finds that the Applicant does not pass the character test because he has a 'substantial criminal record', comprised by the following sentences of 'imprisonment':[40]

(a) 4 years 3 months' imprisonment (concurrent, CC) and 3 years' imprisonment (CC) imposed by the District Court of New South Wales (NSWDC) on 25 September 2009; > > (b) An aggregate term of 23 months' imprisonment, to be served by way of an Intensive Corrections Order, imposed by the NSWDC on 14 September 2017; > > (c) An aggregate term of 61 months' imprisonment imposed by the NSWDC on 14 February 2020; and > > (d) 20 months' imprisonment, to be wholly suspended upon entering a Commonwealth RRO, imposed by the NSWDC on 12 May 2023.

5. The Tribunal is not satisfied that the Applicant passes the character test for the purposes of s 501CA(4)(b)(i) of the Migration Act.

1. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant, and to any relevant primary and other considerations contained within the Direction, there is 'another reason' why the cancellation decision should be revoked.

1. The Tribunal is required to consider whether the Australian community requires protection from harm said to have arisen from the criminal activity or other serious conduct engaged in by the Applicant to date, and from any risk of such harm arising in the future.[41] This is a two-stage process, requiring consideration of both the nature and seriousness of conduct to date, and the risk to the community if further offences are committed or the Applicant engages in other serious conduct.[42]
2. It should be noted at this juncture that the Tribunal is not sentencing Mr Fagalilo for his past deeds. That has already happened. Rather, the Tribunal must assess whether his 'presence here would be opposed to the safety and welfare of the nation'.[43]
3. The concept of 'risk', and whether it is 'unacceptable', under cl 8.1 of the Direction is not the same thing as the 'likelihood of the non-citizen engaging in further criminal or other serious conduct'.[44] For this purpose, an 'unacceptable risk' is a risk which the Tribunal considers to be 'unacceptable' having regard to a variety of considerations, including:

(a) the nature and seriousness of the Applicant's criminal offending and other conduct to date (including the sentences imposed by the courts for a crime or crimes); > > (b) the likelihood of the Applicant engaging in further criminal or other serious conduct; and > > (c) the nature of the harm that could be caused by further offending.

4. The Direction informs the Tribunal's risk assessment, at cls 5.2, 8.1(1), 8.1.1(1) and 8.1.2(1), by reiterating, amongst other things, that the Executive Government:

(a) is committed to 'protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens'; > > (b) considers identified types of conduct to be 'very serious' or 'serious'; and > > (c) considers that 'the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.'

5. It follows that the 'risk' referred to in the balancing exercise contemplated by those clauses of the Direction is not any risk that an applicant may commit further criminal or other serious conduct but is calibrated towards the Tribunal's assessment of the nature and degree of the harm said to be in prospect in the case at hand.

Nature and seriousness of the conduct to date

1. The Applicant's criminal and other serious conduct history is summarised in Annexure A. It is a history characterised by violence and by defiance of orders and authority.
2. Turning to the indictable offences, the conduct can be summarised from the respective sentencing remarks as follows:

(a) In the early hours of 10 January 2009, and whilst subject to a good behaviour bond made by the Children's Court, the Applicant (then 18), in company with six other youths, accosted three men for money. The first victim (Mr A) was punched in the head by a co-offender (uncharged act). The second victim (Mr FZ) was manhandled by the Applicant and a co-offender; in that process the Applicant broke a chain that Mr FZ was wearing around his neck (count 1). The third victim (Mr FS) was manhandled by the Applicant, including being struck with an open right hand twice. Two co-offenders continued the assault on Mr FS, who was struck a total of six times (count 2). Judge Colefax SC remarked that: > > From the age of eighteen the offender has engaged in weekly binge alcohol consumption. Immediately prior to the time of the offences this binge drinking had increased to two to three times a week. The offender becomes aggressive when intoxicated. Since leaving school he has been involved on a monthly basis in some form of physical conflict as a result of intoxication with alcohol. These periods include moments of uncontrolled rage. The binge drinking appears to have been undertaken by the offender in the company of peers of Islander ethnicity and in circumstances where he appears to have been easily influenced by their delinquent and violent behaviour.

The offences were aggravated because the Applicant was on conditional liberty. Whilst the offending was initiated by the youngest peer (who was less than 18), that youth was not the group 'ringleader', and the Applicant was found to be a 'willing and equal contributor to what occurred.' His Honour considered each assault to be 'cowardly and unprovoked' and independently serious crimes. The sentences of imprisonment imposed were ordered to be served concurrently as an act of leniency.

(b) On 24 April 2016, the Applicant drove his co-offender (Mr SL) to a meeting, where the co-offender supplied 41.8 grams of methylamphetamine to an undercover police officer in exchange for $8,500. On 16 May 2016, the Applicant drove Mr SL to a hotel, where they booked a room under the Applicant's name and address. The following day, the Applicant drove Mr SL to another meeting with an undercover operative. The co-offender supplied 169 grams of methylamphetamine and 28 grams of cocaine to the operative for $30,000 and $12,000 respectively. The Applicant was dealt with on the basis that he was the driver and that he knew that substantial amounts of illicit drugs were being supplied by the co-offender. Judge Haesler SC remarked that:

The material before me indicated that, at least superficially, he appears to have learnt important lessons from his time in custody but it is clear from all the material before me that he has limited capacity to think through the consequences of what he was doing. Some testing puts him in the bottom 5% of the population for cognitive functioning. It indicates he has problems with problem solving and he tends to externalise and make aggressive responses. ...

As is common with most supply offences, this offence was committed without regard to public safety. For a brief period, [the Applicant] played his part in organised criminal activity. As is usual, both he and his co-offender, [Mr SL], took the risk and the upline suppliers reaped the reward. The role played by the offender, his low level involvement and, while I have regard to the quantity of the drugs, the fact that I could not find that he knew what quantity was being supplied are all important factors in assessing objective seriousness. Anyone who chooses to engage in supply of drugs has to expect a harsh sentencing. Absent the involvement of people, couriers, such as [Mr SL], drivers such as [the Applicant], drug distribution networks would simply collapse. ...

Here, for no known reward, [the Applicant] agreed to help a friend. He has still yet to acknowledge the full extent of his involvement. He still downplays his obvious criminal behaviour. He knew what his friend, [Mr SL], was doing. So far as the agreed facts reveal, he was not aware of the amounts involved but he knew what was happening and he went along with it on occasions noted for a relatively short period. His naivety and lack of understanding of how serious the matter really was, was revealed by him using his own name on the [hotel] trip. There are two offences here, one is a rolled up charge. There is no discount for multiple offending, however, the offences were part of one effective operation. Only the fact that different drugs were supplied prevented them all being rolled up together. ...

So serious was [the Applicant's] offending, it is accepted, if not by him, certainly by his counsel that a custodial sentence of some length should be imposed. ...

As I have indicated, [the Applicant] has a criminal record. He has been to gaol before. He should have known better. I am sure he left gaol not wanting to return. He spent 34 days in custody, I am sure he does not want to return again. The effect of my order will mean that it will be up to him whether he returns to goal or not. If he keeps to the order, he will not. If he breaches the order, Corrective Services and the State Parole Authority will return him to goal.

(c) On 4 November 2017, and in breach of the Intensive Correction Order which had only been in force for two months, the Applicant was part of a group of males who sought to recover a drug debt. They detained the victim for a short period, which ended with the intervention of police (specially aggravated kidnapping). The Applicant was armed with a loaded pistol, which was sticking out of his front waistband (possess unlicenced firearm). Judge Herbert found that the victim being threatened with a loaded weapon by one of the co-offenders was an aggravating factor. Her Honour thought the kidnapping was 'below the mid-range of objective seriousness'. The possession of the pistol by the Applicant was 'just within the mid-range of objective seriousness due to the fact that the firearm was real, operational, loaded and in possession of the offender at the time of the commission of the aggravated kidnapping offence.' Her Honour remarked:

The [Applicant] has been both victim and offender in relation to violence and views violence as normal.[45] The offender was said to have a distorted perception of violence. Misbehaviour would result in physical abuse and the offender has rigid beliefs that disrespect should be met with aggression. It was recommended that the offender should be referred to the Violent Offenders Treatment Program.

The testing conducted in 2017 showed the [Applicant] to be in the borderline to low average range which was not at a point where a formal diagnosis of intellectual disability is appropriate. Given the factual matrix provided re the 2017 offences this was relevant to his ability to reason, being easily led and having poor problem-solving skills. Given his denial of involvement in the present matter I cannot find that there has been an impact on his moral culpability and no such opinion was expressed by [the forensic psychologist who prepared the pre-sentence report for these proceedings].

According to the Sentence Assessment Report, [the Applicant] is shown to have a pattern of aggressive behaviour linked to substance use. He maintains his denial of the kidnapping offence. He recognised that his peers have a negative impact on his offending. The offender lacks insight, and does not believe that he has any issues with violence or aggression as an adult. The offender was assessed as a medium risk of re-offending.

(d) On 14 April 2019, whilst at Parklea Correctional Centre, the Applicant, and one of his co-offenders from the November 2017 kidnapping (Mr F), attacked another inmate with gaol-made weapons. The Applicant initially stabbed the victim three times to the right side of his head, neck and back, then four more times to the back. When he was pulled off the victim by Corrective Services, the Applicant was stabbed four times by the victim. The victim suffered a left-sided apical pneumothorax (collapsed lung), had one cm wounds to the right forehead and cheek, and four minor puncture wounds to the left-hand side of the back with multiple superficial grazes. The Applicant did not require medical treatment. Judge Herbert considered this to be a serious example of a reckless wounding in company but that it was a less serious type of wounding offence. Overall, her Honour thought that the offending was in the mid-range of objective seriousness.

(e) On 3 January 2022, and whilst subject to conditional liberty on State parole, the Applicant and four other detainees, assaulted three (3) Detention Services Officers at Villawood Immigration Detention Centre. One of the co-offenders was Mr F, and he had instigated the conflict by punching one of the officers. The Applicant was initially requested by one of the officers to 'check on' Mr F prior to the brawl commencing. The Applicant agreed to harm the Commonwealth officers when he joined the brawl. One of the officers suffered a fractured orbital left eye socket and was reported to have symptoms of PTSD. The second officer had injuries to his head and neck. The third officer suffered bruising and scratching and was reported to have PTSD, anxiety, and depression. Judge Shead SC found that at least two of the officers had 'suffered long-lasting ramifications as a result of the harm inflicted.' His Honour considered the offending to be serious and remarked:

Each of the victims were entitled to attend to their professional duties, which are no doubt difficult from time to time, without the infliction of violence by multiple offenders. The experience for each of them would have been painful, frightening and stressful. The CCTV footage shows a fast-moving and rapidly-escalating situation, with a sustained and violent attack.

...

Mr F's participation and violence are at a significantly greater level than that displayed by [the Applicant] and [offender three]. [The Applicant] was originally called in by Villawood staff and appeared to try and assist. However, thereafter [the Applicant] and [offender three] both participated once the melee broke out. They appeared to me to mostly try and restrain the victims morse so than inflicting significant violence themselves, although, they did so, but this of course meant that the victims could not defend themselves and were vulnerable to attacked.

I accept the offenders' submissions that the offence itself can generally relate to offences in the workplace, although this is not an element of the offence. The victims were, nevertheless, harmed while they were at work.

...

I am satisfied that the victims suffered the physical harm described and accepted in the agreed facts, but I accept the submission that the harm, while serious, was quintessentially such as contemplated by the offence provision.

...

I am satisfied that [the Applicant] has demonstrated insight into his offending and has expressed remorse.

Two other co-offenders, who played lesser roles than Mr F, the Applicant and offender three, were dealt with separately in the Local Court. The Applicant and the third offender were held to be less culpable than Mr F (and they were each charged with being in joint commission with him and not each other). The Applicant's sentence was backdated to take into account his period of immigration detention from 2 March 2022, when a Criminal Justice Stay Certificate issued to prevent his involuntary removal.

1. The Applicant properly accepted that his indictable offences to date were "very serious".[46] That is unquestionably the case, regardless of the indication at cls 8.1.1(1)(a)(i), 8.1.1(1)(b)(ii) and 8.1.1(1)(b)(iv) of the Direction, that such violent crimes are to be regarded as being "very serious", or that crimes committed against government officials in the performance of their duties and whilst in immigration detention are to be regarded as "serious".
2. The Applicant's offending and other serious conduct to date has been frequent. It is cumulatively significant. The Applicant has caused physical harm to multiple people on multiple occasions. The seriousness of his conduct is reflected by the sentences imposed by the NSW Courts, including significant periods of both immediate imprisonment and suspended sentences. The offences committed after May 2018, when the Applicant was notified of the mandatory cancellation of his visa, particularly the reckless wounding and the cause harm convictions, occurred in the face of clear warning, in writing, about the consequences of such conduct for the Applicant's potential right to enter or remain in this country. He was separately aware of the potential for visa cancellation due to criminal offending well before that date, having been either subject to a personal warning in 2010-2011 or been made aware of the potential cancellation because his brother's visa was cancelled at some stage before 2016.
3. The Tribunal finds the nature and seriousness of the Applicant's criminal and other serious conduct to date to be very serious.

Risk to the Australian community should the Applicant engage in further conduct

1. The Tribunal is required to have regard to the future risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in such conduct.[47]
2. There is no statutory constraint on the way that risk is assessed by the Tribunal other than that there must be a rational and probative basis for the assessment.[48]

1. The Minister argued that any future offending of a similar nature by the Applicant would have potential to cause physical and/or psychological injury/harm to members of the Australian community.[49] He also argued that the Applicant's disregard for the law could cause harm to the Australian community by requiring the State/Commonwealth to investigate, prosecute, punish, and take steps to try and rehabilitate him.[50]
2. The Tribunal accepts that the Applicant's criminal and other serious conduct to date reveals a pattern of aggression and violence, repetition of which can cause serious injury to individuals. It is also clear that he has put the Australian taxpayer to considerable expense over many years in maintaining the criminal justice system (police, prisons, courts etc) and that further offending could have a similar impact on the public purse.

1. The Applicant argued that he did not pose a risk to the Australian community, and that he had made 'significant changes', including cutting ties with antisocial peers and being faced with the prospect of permanent exclusion from his family.[51]
2. Those submissions need to be viewed in the context of the Applicant's evidence before the Tribunal that he had committed at least one drug offence in NZ (said to be because he was hanging around with antisocial peers, 'fellow 501s', in Auckland) and that the Applicant's former partner and son travelled to NZ in April 2025.
3. The Applicant told the Tribunal that he had been subject to an order under the Returning Offenders (Management and Information) Act 2015 (NZ) (Returning Offenders Act) but that this had expired in June or July 2025.
4. The Tribunal notes that the good behaviour component of the Applicant's RRO expired on 12 January 2025.[52]
5. The Applicant testified that he had been living in Wellington from early 2024. He is currently working as a foreman for a demolition company, with an annual salary of between NZD70-80,000. He has an aunt in Wellington with whom he is in regular contact and he has been attending an Assemblies of God Church. He told the Tribunal that when he met with a psychologist - Mr Tsolis - in 2023, he realised that anxiety was what caused most of his violence and that he uses violence to overcome his anxiety. He said that, in the last 15 months, he has overcome that anxiety, is more prosocial now and is 'pretty much a different person...I talk with clients, do tool-box talks, pre-starts'. This was also said to be attributable to his present employment, which has helped him with his anxiety.
6. The Minister argued that there was a real risk that the Applicant will engage in further criminal or other serious conduct and that this risk is "unacceptable".[53]
7. The Applicant wrote to the Department by hand in May 2020,[54] and said the following:

It now has been two long years since I received and submitted my request of revocation and a lot has happened since. > > Gaol has changed me physically & mentally, it helped open my eyes and realise where I went wrong in life. Its helped me take notice on how much family love and support I truly have and am forever grateful for them. > > As you can see I was found guilty at trial for the take & detain and possess pistol offence. It wasn't the outcome I was expecting, I had some good grounds for appeal or re-trial but I honestly couldn't go through it again. It takes so much out of you doing a trial while being incarcerated, very exhausting. > > While in custody I was involved in a jail fight which cause me to receive a reckless wounding charge. I'm disappointed with myself with what happened that day. > > Violence in this type of environment is inevitable. > > My criminal history isn't the brightest, I honestly had bad role models growing up, I was your typical run-away kid, a troubled youth. > > It wasn't until I was release[d] from prison in 2011 at age 20 that I got my shit together for the first time. I held a job for 3-4 years and I was out of trouble for 5-6 years. It was a breakup from a former girlfriend is what lead me off track. She was the support I had around that time that kept me on the straight and [n]arrow. It shows that if I got that right support around me it keeps me out of trouble. > > ... > > Mr brother ...also had immigration issues in 2015/2016 they revoked his cancellation, he's being doing so well now, got full-time job, getting married when I get out and plus he has been out of trouble for 4 years now. It proves if he can do it, so can I. > > I honestly have changed from when I was arrested seeing my son and step children grow so quickly plus knowing I now have a huge responsibility, it has changed everything for me. > > ... > > (emphasis added)

8. As can be seen from Annexure A, there was a break in the Applicant's criminal conduct between March 2011 and April 2016. However, violence clearly continued both in custody and immigration detention. Accordingly, the Applicant had not, in fact, learnt any lessons as claimed.
9. The most recent risk assessment made by NSW was a Pre-release report dated 15 June 2021.[55] The Tribunal was also provided with psychological reports prepared in 2016,[56] January 2017,[57] September 2019,[58] December 2021,[59] and March 2023.[60]
10. The Applicant was taken to some of the comments in the Pre-release report regarding his participation in programmes in custody during the Tribunal hearing, and he agreed that they were fair, with hindsight. In June 2021, the State assessed the Applicant as being a 'medium' risk of re-offending, using the Level of Service Inventory - Revised actuarial tool.[61] The overall assessment made by the author was as follows:

[The Applicant's] behaviour in custody prior to June 2020 was unsatisfactory and his ability to undertake offence targeted interventions was hindered by his many non-association orders. He compiled numerous institutional misconduct charges and was convicted of a serious offence committed against a fellow inmate. Although [the Applicant] completed several [Explore, Question, Understand, Investigate, Practice, Succeed (EQUIPS)] programs, along with the [Real Understanding of Self Help (RUSH)] program whilst housed in Shortland [Correctional Centre High Intensity Programs Unit], his engagement in these programs was deemed to be superficial, and it was recommended that he repeat them in the future. Any benefit [the Applicant] may have obtained from participation in these programs is questionable. > > Regardless of this, his last institutional misconduct charge was recorded almost 12 months ago. [The Applicant] has acknowledged the correlation between his association with negative peer groups and past offending behaviour and has indicated he will refrain from any further association in the future. [The Applicant] claimed that in the last 12 months he had matured, "settled down", and learnt to avoid or walk away from high risk situations. This claim appears to be reinforced by his lack of recorded negative behaviour in the last 12 months. > > [The Applicant's] post release plans have been assessed as appropriate in mitigating any ongoing risk to the community should he be allowed to remain in Australia. [The Applicant] will enjoy the support of his partner and large extended family. Additionally, relevant interventions are available in the community and he can be referred to complete the EQUIPS Aggression program again. As such, [the Applicant's] release to parole is recommended.

Although his history ... under supervision offers little to back any sense of optimism for future compliance, there have been some improvements in the behaviour of [the Applicant] over the last 12 months. He has completed, albeit with mixed reviews, a number of the EQUIPS suite of programs and will have those programs available to him as refreshers in the community.

The post release plan which has been developed will support [the Applicant] should he wish to take advantage of the interventions, along with the support of his partner and the likelihood of employment.

In the circumstances the recommendation of [the above author] is supported.

1. The Tribunal notes that there were reported violent incidents in immigration detention in March, May, and June 2023.[62] The Applicant was asked about these incidents in cross-examination. He recalled two of them. He told the Tribunal that, in May 2023, his 'mind was all over the place', and that he just wanted to get out of immigration detention. In respect of the March 2023 incident report, the Applicant chose not to answer the questions asked of him, as was his right. In the absence of further evidence about those incidents (including, for example, CCTV), the Tribunal places little weight on them other than to note they confirm the consistent theme of aggression.
2. In his report dated 29 March 2023, Mr Tsolis refers to the earlier intellectual testing conducted of the Applicant in 2017.[63] He agreed with the earlier psychologist that the Applicant's intellectual functioning means that he is 'likely to have difficulty with complex abstract reasoning, including self-talk, self-regulation and consequential thinking', and said that this 'goes some way to explaining his frequent misrepresentation of situations and his poor problem-solving capacity, such that he tends towards externalising, aggressive responses to situations as a means of self-protection, even when self-protection is not necessary. His level of functioning further suggests that he is likely to struggle to be assertive and may be easily led by others who are more astute.' Mr Tsolis completed the Personality Assessment Inventory with the Applicant, he observed that:

The configuration of the clinical scales is quite unusual. It suggests a person with significant thinking and concentration problems, accompanied by impulsivity and the potential for acting-out behaviours. His social judgment is probably quite poor and those few social relationships that have been maintained are probably strained.

Mr Tsolis diagnosed the Applicant with Generalised Anxiety Disorder. His concluding comments included:

[The Applicant] has had a prolonged period of introspection whilst incarcerated and in detention. The resultant insight that he has gained into his own psychological difficulties and behaviours coupled with his commitment to seek treatment for his anxiety stands him in good stead to make significant changes to his psychosocial functioning. He has had prolonged periods of time where he has not offended and he has managed to cease using alcohol, illicit substances and cease gambling of his volition. He is clearly capable of change if given the correct tools and strategies.

[The Applicant] has had a breakthrough in this therapeutic alliance as he has been able to let his guard down and admit to his catastrophically high levels of anxiety that have married his life to date. Now that he is beginning to develop an insight and understanding to his mental health struggles he will be able to learn and use strategies to assist him in managing it. Consequently, I believe he will cease relying on anger and aggression as avoidance mechanisms and his offending should cease as a result. [The Applicant] has also begun using antidepressant medication to assist him in regulating his mood and anxiety symptomatology.

1. The Tribunal notes that Judge Herbert was sceptical of the earlier intellectual functioning assessments in 2020.[64] Her Honour did not think the Applicant had good prospects of rehabilitation. Judge Shead SC was also 'guarded' about the Applicant's prospects of rehabilitation in May 2023.[65]
2. On the evidence before it, the Tribunal finds that the Applicant is a moderate likelihood of re-offending. His counsel agreed that this finding was open on the evidence. The dispute between the parties was whether the risk was "unacceptable".

Conclusion on protection of the Australian community

1. The Direction contains policy guidance, at cls 5.2, 8.1(1), 8.1.2(1), to the effect that:

Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to enter and/or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community (cls 5.2(1), 8.1(1)); > > The safety of the Australian community is the highest priority of the Australian Government' (cl 5.2(2)). 'To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 8.1(1)); > > Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (cl 5.2(3)); > > The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a [measurable] risk of causing physical harm to the Australian community (cl 5.2(4)); > > With respect to decisions to ...revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (cl 5.2(6)); > > Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify ...revoking a mandatory cancellation (cl 5.2(7)); and > > In considering the need to protect the Australian community ...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. 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 (cl 8.1.2(1));

2. The Tribunal is authorised, but not bound, to give the above policy guidance weight.[66] The Tribunal respectfully considers the policy considerations identified above to be appropriate, and to conform with the terms of the Migration Act and the nature of the power found in s 501 and its analogous provisions.
3. The Applicant contravened the expectation that he be law-abiding and not cause or threaten harm to the Australian community. He has repeatedly engaged in violent offences, despite multiple opportunities in which to rehabilitate himself. Whilst there is a level of tolerance afforded to him, as someone who arrived as a young person, that tolerance has its limits. The Applicant is now in his 30s. He was reminded of the expectation that he be law-abiding as an adult, and he chose to ignore the perils associated with further unlawful conduct. The Applicant's intellectual functioning and psychological makeup is something of a 'double-edged sword', in that it may, in part, explain his past conduct, but equally this predisposition to being influenced by others and to acting out with aggression confirms the presence of an ongoing risk to the community. The Tribunal has found that the Applicant poses a moderate likelihood of recidivism in the reasonably foreseeable future. The Tribunal notes that there is disclosed further unlawful conduct in NZ, which included possession of illicit drugs. This was a risk factor identified for further acts of violence. Putting that all together, the risk of re-offending in this case is properly characterised as being 'unacceptable' because of the inherently serious nature of acts of physical violence and the evidence before the Tribunal demonstrative of its potential repetition being more than a remote possibility (that is, a risk that is not trivial or transient). The Tribunal is conscious of the adverse effects that a conclusion of this kind might have on Mr Fagalilo and his family and has weighed that in the balance, given the burden that such a conclusion might have on the outcome of these proceedings based upon an assessment made about the risk of the commission of future crimes. Nevertheless, the Tribunal considers the Applicant to pose an 'unacceptable' risk to the Australian community.
4. The Tribunal finds this primary consideration to weigh very heavily against revocation.

Strength, nature and duration of ties to Australia

1. The Tribunal is required to consider any impact of the decision on the Applicant's immediate family members in Australia.[67] The Tribunal must also consider the strength, nature, and duration of any other ties that the Applicant has to the Australian community, having regard to how long he resided in Australia,[68] and the 'strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia'.[69]

Impact of a decision on immediate family members

1. The Applicant's 'immediate family members'[70] in Australia comprise:

(a) his parents; > > (b) his four siblings; > > (c) his ex-partner; > > (d) their seven-year-old son; and > > (e) the ex-partner's three children (the stepchildren).

2. The Applicant's father testified on the first day of hearing. He testified that he wanted the Applicant to be able to return to Australia to be with his grandson (the Applicant's son), that he had concerns for his health and that he wanted to see his son, and have him around their family, before he dies.
3. The Applicant's mother testified on the second day of hearing. She told the Tribunal that she wanted the Applicant to be able to return to Australia, for his son (her grandchild) and because she was 'concerned' and 'worried' about him in NZ. She spoke about how her grandson missed his father.
4. One of the older brothers, Mr TF, testified on the first day of hearing. He thought that the Applicant had changed and learnt his lesson. He said that he had been a bad role model growing up and that if he could change his life around so could the Applicant. He has four children:

(a) One son: Master CH (17), who lives with his mother in Sydney. He last saw this child 18 months before the Tribunal hearing and did not remember the last time his son saw the Applicant; and > > (b) Three daughters: Miss SN (14), Miss TN (10) and Miss HN (9). He thinks the daughters would have seen the Applicant in person in 2018/2019 but they have seen him on video calls since then.

Mr TF accepted in cross-examination that, from June 2023, there was not really much of a relationship between the Applicant and his children, but they talk to him occasionally when he is talking to the Applicant by remote means.

1. The Tribunal took oral evidence from Mr TF's partner, Ms N, and her sister, on the second day of hearing. Ms N testified that the Applicant had lived with Mr TF and her about ten years prior and that he had been a 'good roommate'. She thought that the Applicant deserved a second chance and had been immature before. She confirmed that the Applicant had a close relationship with his son and stepchildren, especially the youngest stepchild. Ms N told the Tribunal how the Applicant had 'stepped up' when Mr TF was imprisoned for drug offending and when his visa was cancelled about eight or nine years ago. Ms N and her sister had been to the same high school as the Applicant. The sister wanted the Applicant to be allowed to return to Australia because his immediate family were all here. She testified about the Applicant's relationship with his son and how this had improved with access to social media, which had not been available to them when the Applicant was in prison.
2. The Applicant's twin brother, Mr JF, testified on the first day of hearing. Their parents live with him. He thought that the Applicant should be allowed to return to and remain in Australia because 'as much as he needs us, we need him.' He told the Tribunal that the Applicant would not re-offend because of the nature of his relationship with his son today, given that they now communicate with one another. The twin brother has obtained an offer of employment for the Applicant, should he be allowed to return to Australia.
3. The oldest brother, Mr NF, testified on the second day of hearing. He said it would be quite upsetting if his brother was not allowed to return to Australia because they grew up together and had a close relationship. He spoke about the Applicant's children and their parents. He told the Tribunal that their father had been very frail since he had a quadruple bypass in 2020.
4. The Applicant's former partner, Ms MR, is a NZ national and she testified on the second day of hearing. She told the Tribunal that they met at a BBQ in 2016. She described the Applicant as 'very loving and caring' and a 'doting stepfather to my other children'. She was asked about the Applicant's relationship with her three older children. She said that it was 'very strong still but a little strained because of the distance; not much has changed.' When asked about the Applicant's relationship with their son, she said that it was 'amazing, like he never went to gaol', and that their relationship could be strained on the telephone because the son could be shy. She said that she needed the Applicant in Australia to help with the children and with her mental health. Ms MR told the Tribunal that they were living in temporary accommodation provided by the NSW Government. She told the Tribunal that she did not think the Applicant would re-offend because she had travelled to NZ in April 2025 and seen a 'changed man and a remorseful man'. She described their brief reunion in NZ as a 'heartfelt moment'. She said that the children and her would be 'devastated' by an adverse decision and that they were relying on the Applicant for support.
5. In cross-examination, Ms MR indicated that the Applicant and her remain 'good friends' and that they are not in an intimate relationship at present. She testified that the Applicant 'played a role for a short time with the kids' and that they 'looked up to him'; he 'came in at a dark point and saved us, it felt like.' Ms MR was asked whether the stepchildren had any contact with their biological father and said that they had not seen him in years, do not know where he is and that there were no orders in place regarding their care or custody. She said that the children engage with the Applicant through social media and video calls.
6. The Tribunal finds that the Applicant's immediate family members would each be adversely affected by a decision not to revoke the mandatory cancellation. They would like him to be able to return to Australia and that there are barriers to them travelling to see him in NZ.

Strength, nature and duration of any other ties

1. The Applicant lived in Australia between December 1997 and June 2023. He turned 18 in October 2008. He was subject to a good behaviour bond from the age of 18 until February 2009. He committed the assault with intent to rob offences in January 2009. He was in NSW custody between 20 January 2009 and 5 March 2011. His first parole term expired on 19 March 2013. There was an evident gap in offending from March 2011 until April 2016. The Applicant was returned to NSW custody between 17 May 2016 and 20 June 2016. He was placed on an Intensive Correction Order on 14 September 2017. 51 days later, the Applicant was involved in the specially aggravated kidnapping on 4 November 2017. He was returned to custody the following day. The Applicant was released to parole (and detained under the Migration Act) in September 2021. He was removed from Australia on 16 June 2023.
2. It follows from that summary that the only prosocial period of the Applicant's life in this country, as an adult, seems to have been between March 2011 and April 2016. The Applicant attended school until Year 10. He obtained sporadic employment when he was not in custody, including with his father's mechanic business. The NSWDC was provided a letter in May 2017, indicating that the Applicant had been employed by the author as an 'OH&S Site Inspector and Manager' for the preceding 12 months (presumably after 20 June 2016).[71]
3. The Tribunal heard from one of the Applicant's friends, Mr JM, on the second day of hearing. Mr JM works in civil construction and demolition and offered to employ the Applicant should he be allowed to return to Australia. He told the Tribunal how he had bonded with the Applicant over Xbox and PlayStation when they were younger, and that he knew the 'real' personality that he is (despite not knowing the Applicant's criminal history).
4. The Tribunal finds that the Applicant has enduring familial and social ties to Australia, Australian permanent residents, and persons with an indefinite right to reside in Australia. He spent most of his formative years in this country. However, the Applicant's residence in this country has been marred by the commission of serious crime. He spent some 2,200 days (six years) in NSW custody over three periods (between January 2009 - March 2011, May 2016 - June 2016, and November 2017 - September 2021) and 651 days (1 year 9 months) in immigration detention (between September 2021 and June 2023). Nevertheless, there was a period of apparently prosocial activity between March 2011 and April 2016.
5. Overall, the Tribunal finds that the strength, nature, and duration of the Applicant's ties to Australia primary consideration weighs moderately to heavily in favour of revocation.

1. The Tribunal is required to consider the best interests of minor children in Australia that are affected by the decision.[72] As there are multiple relevant minor children in this application, the Tribunal is required to give their interests separate consideration to the extent that their interests may differ.[73] Clause 8.4(4) of the Direction outlines the factors that the Tribunal must consider when determining the best interests of a child affected by the decision.
2. The Tribunal has already summarised some of the evidence before it concerning the relevant minor children in context of the strength, nature, and duration of ties primary consideration.

1. The Applicant's son was born in NSW in March 2018. The Applicant had been in prison from 5 November 2017. He went from prison to immigration detention and then to NZ. The Applicant told the Tribunal in June 2023 he was 'having issues' with Ms MR and could not see his son (when he was in immigration detention). There are no orders in place and Ms MR has full custody. The Applicant said that his parents would pick up the son every fortnight and that he would contact his parents to speak to his son on those weekends. The Applicant and Ms MR started 'talking again' in 2024, when he moved to Wellington. He then saved a bit of money and purchased flights for Ms MR and the son to fly out to NZ, for a fortnight. They stayed with him during that visit. He sends financial support when Ms MR asks for it, and on special occasions. The Applicant told the Tribunal that his son needed a father figure and that he was at an age when he was starting to talk back.
2. The Minister properly conceded that revocation would be in the son's best interests.[74]
3. In considering the best interest of the son, the Tribunal has had regard to:

(a) The nature and duration of the father-son relationship, including that the relationship has continued despite the Applicant's incarceration, detention, and removal. > > (b) The son is seven years old. The Tribunal accepts that there is a prospect that the Applicant may play a positive parental role in the future, depending on whether he abstains from further illicit drug use and crime; > > (c) The ex-partner is providing a parental role and there is some involvement from the paternal grandparents and extended family. However, the Applicant's physical separation is likely to be detrimental to his son's long-term development notwithstanding the ability for them to maintain remote contact. > > (d) There are no known views of the child but it can be inferred from other evidence that he wants his father to be able to return to Australia. > > (e) There is no evidence before the Tribunal that the son has been, or is at risk of being, subject to, or exposed to, family violence, abuse, or neglect by the Applicant in any way, or that he has suffered or experienced trauma arising from the Applicant's conduct.

1. Ms MR has three children to a former partner: Master JPH (16), Miss AK (13) and Miss SRK (10).[75] Their mother told the Tribunal that they had a 'strong' relationship with the Applicant despite the strains associated with distance. Their father reportedly has nothing to do with the children and there are no orders in place. The children, including the son, engage with the Applicant on a regular basis through Messenger and video calls.
2. The Minister similarly conceded that revocation would be in the stepchildren's best interests.[76]
3. In considering the best interests of Master JPH, the Tribunal has had regard to:

(a) The nature and duration of the stepfather-son relationship. The Applicant was in prison between May 2016 and June 2016, and from November 2017. > > (b) JPH is 16 years, 8 months old. The Tribunal accepts that there is a prospect that the Applicant may play a positive parental role in the future, however the opportunity to influence, particularly in the formative years, could fairly be said to be somewhat limited. > > (c) The ex-partner is providing a parental role. There is reportedly no other person around, and Ms MR and her children live in State housing. > > (d) There are no known views of the child but it can be inferred from other evidence that he is open to the Applicant living with his mother and siblings. > > (e) There is no evidence before the Tribunal that the stepson has been, or is at risk of being, subject to, or exposed to, family violence, abuse, or neglect by the Applicant in any way, or that he has suffered or experienced trauma arising from the Applicant's conduct.

4. In considering the best interests of Miss AK, the Tribunal has had regard to:

(a) The nature and duration of the stepfather-daughter relationship. The Applicant was in prison between May 2016 and June 2016, and from November 2017. > > (b) AK is 13 years, 6 months old. The Tribunal accepts that there is a prospect that the Applicant may play a positive parental role in the future. > > (c) The ex-partner is providing a parental role. There is reportedly no other person around, and Ms MR and her children live in State housing. > > (d) There are no known views of the child but it can be inferred from other evidence that she is open to the Applicant living with her mother and siblings. > > (e) There is no evidence before the Tribunal that the stepdaughter has been, or is at risk of being, subject to, or exposed to, family violence, abuse, or neglect by the Applicant in any way, or that she has suffered or experienced trauma arising from the Applicant's conduct.

5. In considering the best interests of Miss SRK, the Tribunal has had regard to:

(a) The nature and duration of the stepfather-daughter relationship. The Applicant was in prison between May 2016 and June 2016, and from November 2017. Ms MR wrote that this daughter had a 'close bond' with the Applicant.[77] > > (b) SRK is 10 years old. The Tribunal accepts that there is a prospect that the Applicant may play a positive parental role in the future. > > (c) The ex-partner is providing a parental role. There is reportedly no other person around, and Ms MR and her children live in State housing. > > (d) There are no known views of the child but it can be inferred from other evidence that she is open to the Applicant living with her mother and siblings. > > (e) There is no evidence before the Tribunal that the stepdaughter has been, or is at risk of being, subject to, or exposed to, family violence, abuse, or neglect by the Applicant in any way, or that she has suffered or experienced trauma arising from the Applicant's conduct.

1. The Applicant has a 17-year-old nephew, Master CH. He has a limited relationship with his own father (the Applicant's brother). There is no evidence before the Tribunal that he will be meaningfully affected by a decision in this matter.

1. The Applicant has three nieces: Miss SN (14), Miss TN (10) and Miss HN (9). Their half-brother is Master CH. They reportedly talk to the Applicant when he talks with his brother.
2. In considering their best interests, the Tribunal has had regard to:

(a) The nature and duration of the uncle-niece relationship. The Applicant was in prison between May 2016 and June 2016, and from November 2017. There has been contact since he moved to NZ. > > (b) The nieces live with their parents in NSW. > > (c) There are no known views of the nieces but it can be inferred from other evidence that they would be open to their uncle being allowed to return to Australia. > > (d) There is no evidence before the Tribunal that the nieces have been, or are at risk of being, subjected to, or exposed to, family violence, abuse, or neglect by the Applicant in any way, or that they have suffered or experienced trauma arising from the Applicant's conduct.

3. The Minister conceded that revocation would be in their best interests but highlighted that this was a non-parental relationship, where the Applicant would not play any central role in their development.[78]

Conclusion on best interests of relevant minor children

1. The best interests of the Applicant's son, stepchildren and nieces each favours revocation. That is more pressing for the Applicant's son, followed by Miss SRK, then the other two stepchildren, and then the nieces. Overall, this primary consideration weighs strongly in favour of revocation.

1. This primary consideration is a 'kind of deeming provision',[79] which requires the Tribunal to consider the Minister's articulation of community expectations.[80] Clause 8.5(1) of the Direction provides that 'the Australian community expects non-citizens to obey Australian laws while in Australia'. The Direction goes on to state that:[81]

[w]here a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government would not allow such a non-citizen to enter or remain in Australia.

2. Clause 8.5(2) then adds to that first 'norm_'_ and indicates that visa refusal may be appropriate in a particular case 'simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa'. It specifies identified kinds of conduct, committed in Australia or elsewhere, as attracting that further expectation,[82] including the 'commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties'.[83]
3. The norms identified in the Direction 'apply regardless of whether the [Applicant] poses a [measurable] risk of causing physical harm to the Australian community'.[84]
4. The Tribunal is commanded to 'proceed on the basis of the Government's views as articulated' in the Direction, 'without independently assessing the community's expectations in the particular case'.[85]
5. The Tribunal adopts the approach to this primary consideration identified by Justice Horan in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 at [50]- [59]. It does not accept the submission that the Applicant's intellectual functioning or mental health are reasons to reduce the weight afforded to this primary consideration.[86]
6. The Tribunal finds that this primary consideration weighs very heavily against revocation and will weigh this against the other relevant considerations.

1. The Tribunal is required to consider the legal consequences of its decision.[87] That is, the Tribunal must have regard to the statutory framework in which the power to refuse to grant the visa exists, including the direct and immediate consequences of an exercise of the power (including any decision under s 105 of the ART Act).
2. There are three major consequences of visa refusal or cancellation under s 501 and related provisions:

(a) a prohibition, within the migration zone, on applying for other types of visas under s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[88]

(b) refusal/cancellation of other visa applications/visas under s 501F of the Migration Act; and

(c) the possible application of periods of exclusion and special return criteria under s 503 of the Migration Act and SRC 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusion where SRC 5001 applies unless the Minister acts personally to grant a permanent visa to the person under s 195A.

1. As indicated in the introductory paragraphs to these reasons, the only legal consequence of any relevance in this matter is whether SRC 5001 should apply to a potential future visa application. That is, whether a fatal criterion should be removed from any future visa application to which it would otherwise apply.
2. These adverse consequences can each be avoided by a positive decision to revoke the mandatory cancellation decision, and it should not be assumed that Parliament has evinced any preference as to the outcome of the review.[89]
3. There is no basis for finding that Australia's non-refoulement obligations are engaged with respect to NZ and the Applicant's circumstances.
4. The Tribunal finds that the legal and other consequences of this decision weigh marginally in favour of revocation given the prospect of permanent exclusion, including as a potential barrier to obtaining a provisional partner visa (and then a permanent one thereafter).[90]

1. The Minister argued that this other consideration was not relevant in circumstances where the Applicant had already been removed to NZ more than two years prior to the Tribunal's decision.[91]
2. The Applicant sought to rely on Senior Member Tavoularis' reasoning in Re Dore and Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2022] AATA 1750 at [198] where the learned Senior Member accepted an argument that he should consider the Applicant's mental health if he was permanently separated from Australia and his loved ones. This reasoning was fact specific.
3. Clause 9.2(1) of the Direction asks the Tribunal to 'consider the extent of any impediments that the [Applicant] may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards...'. On its face, it asks a hypothetical question where an Applicant is within the migration zone regarding the impediments to them re-establishing themselves in their country of origin. It is a consideration which generally weighs in favour of the Applicant not being expelled from the country.
4. The Applicant was voluntarily removed from Australia in June 2023. Part of the Applicant's argument about the relevance of this other consideration was premised on a false foundation that his intellectual functioning and mental health were posing considerable difficulties for him in NZ.[92] However, the Tribunal heard oral evidence from the Applicant to the effect that he was living in stable accommodation in Wellington, that he had obtained full-time employment, that his anxiety had reduced through that employment, and that he did have familial support both from Australia and in NZ (including an aunt he saw on a regular basis). On that factual matrix, the Applicant has re-established himself in NZ and maintains basic living standards.
5. The Applicant is almost 35 years of age. He testified that he is not on any medication and has no concerns with his physical health. The Tribunal accepts that, in Australia, he had been diagnosed with anxiety and that he was exhibiting signs of depression and stress in prison and immigration detention. He was assessed at Blacktown Emergency Department in June 2017 and discharged with no abnormality detected.[93] In January 2017, Ms Jessica Pratley, forensic psychologist, tested the Applicant's intellectual functioning using two of the four subtests of the Wechsler Abbreviated Scale of Intelligence - Second Edition screening tool.[94] The estimate of functioning placed the Applicant in the 'borderline to low average range, performing in the bottom 5% of his age range.'[95] Mr Tsolis relied on that assessment in December 2021[96] and March 2023.[97]
6. The Tribunal does not accept that there are any substantial language or cultural barriers for the Applicant in NZ, and such barriers have clearly been overcome in any event.
7. In prison, the Applicant obtained his General Construction Induction Card (White Card) and forklift and first aid qualifications.[98]
8. NZ has a comprehensive health, education, and social security network.[99] The Applicant will be able to register and access those services as required. Support to deal with drug addiction will be available to him through providers such as Narcotics Anonymous (as it was in Australia).[100] The Applicant was also previously the subject of supervision and support under the Returning Offenders Act. Community organisations such as the Prisoners Aid and Rehabilitation Services[101] and Te Pa[102] in NZ also provide support to people in the Applicant's position.
9. The Tribunal considers that the Applicant will be personally and deeply affected by his expulsion from Australia being made permanent. This potential emotional and psychological hardship can be withstood but should not easily be dismissed.
10. The Tribunal finds that the Applicant has re-established himself in NZ and that he maintains basic living standards. Nevertheless, the potential for his removal to NZ being made permanent is a potentially devasting consequence for the Applicant and for his immediate family. This weighs in favour of revocation.

1. The Applicant advanced his job offer from Mr JM's employer, Demolition Brothers Pty Ltd, as raising an Australian business interest which might be affected by the Tribunal's decision.[103] It was put that this business would be 'disadvantaged' if had to recruit someone else.
2. The job offer itself indicates no such disadvantage. Mr JM testified as to the 'labour shortage' in construction in Sydney. However, when questioned by the Tribunal, he admitted that this business was not going to suffer any meaningful harm if it was not able to hire the Applicant, and that the offer was contingent upon the Applicant obtaining permission to return to the country and to work here.
3. The Tribunal notes that there is no indication that the Applicant's absence from Australia has comprised the delivery of a major project or an important service in Australia. It gives the potential impact of its decision on Australian business interests no weight.

1. The Tribunal has found that the Applicant does not pass the character test. The real issue was whether the Tribunal was satisfied that there was 'another reason' to revoke the mandatory cancellation decision.
2. The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is 'another reason' why the mandatory cancellation decision should be revoked.[104]
3. Clause 7(2) of the Direction states that the primary consideration in cl 8.1 (protection of the Australian community) is 'generally to be given greater weight than other primary considerations', and that, otherwise, the relevant 'primary considerations should generally be given greater weight than the [relevant] other considerations.' This guidance is consistent with the principle articulated at cl 5.2(2), that 'the safety of the Australian community is the highest priority of the Australian government'. There is no good reason to depart from that policy in this case.
4. The Tribunal has found that the Applicant poses an unacceptable risk of re-offending in a violent manner. The protection and expectations of the Australian community primary considerations weigh inexorably against revoking the mandatory cancellation decision. They are not outweighed by the other primary considerations, which are in the Applicant's favour, particularly the strength, nature and duration of his ties to Australia and the best interests of relevant minor children. The other considerations, being the legal consequences of the decision and the extent of impediments in NZ, do not meaningfully affect that calculus.
5. In summary, the Tribunal has considered the relevant considerations in this matter and determined that there is not 'another reason' to revoke the mandatory cancellation in this matter. The correct decision is therefore to affirm the reviewable decision.

I certify that the preceding 133 (one hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

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

ANNEXURE A - CRIMINAL AND OTHER SERIOUS CONDUCT RECORD

District Court of New South Wales at the Sydney Downing Centre

20 mths' imprisonment, backdated to 2 Mar 2022, to be released upon giving security in the amount of $250 and entering into an RRO of 20 mths' duration and to be of good behaviour for that period

On 7 Sep 2021, the Applicant is released on parole and detained under s 189(1) of the Migration Act

Aggregate sentence of 61 mths' imprisonment, from 4 Mar 2018.

Applicant in NSW custody between 5 Nov 2017 and 7 Sep 2021

Reckless wounding in company offence committed within prison on 14 Apr 2019

Smoke/use tobacco/e-cog when in Correctional Centre (reg 322)

Physical aggression (reg 141) (fight or other physical combat)

Physical aggression (reg 141) (fight or other physical combat)

On 22 Nov 2017, a judicial member of the State Parole Authority revokes the ICO with effect from 4 Nov 2017

Aggregate sentence of 23 mths' imprisonment, to be served by way of an Intensive Correction Order (ICO)

Applicant in NSW custody between 17 May 2016 and 20 Jun 2016

ANNEXURE B - LIST OF VISAS TO WHICH SRC 5001 DOES NOT APPLY

• Class WA Subclass 010 Bridging A (temporary) visa;
• Class WB Subclass 020 Bridging B (temporary) visa;
• Class WC Subclass 030 Bridging C (temporary) visa;
• Class WD Subclass 040 Bridging (Prospective Applicant) (temporary) visa;
• Class WD Subclass 041 Bridging (Non-Applicant) (temporary) visa;
• Class WE Subclass 050 Bridging (General) (temporary) visa;
• Class WE Subclass 051 Bridging (Protection Visa Applicant) (temporary) visa;
• Class WF Subclass 060 Bridging F (temporary) visa;
• Class BC Subclass 100 Partner (permanent) visa;
• Class AH Subclass 101 Child (permanent; visa;
• Class AH Subclass 102 Adoption (permanent) visa;
• Class AH Subclass 117 Orphan Relative (permanent) visa;
• Class TY Subclass 444 Special Category (temporary) visa;
• Class TK Subclass 445 Dependent Child (temporary) visa;
• Class UJ Subclass 449 Humanitarian Stay (temporary) visa;
• Class XD Subclass 785 Temporary Protection visa;
• Class UO Subclass 786 Temporary (Humanitarian Concern) visa;
• Class XE Subclass 790 Safe Haven Enterprise visa;
• Class BE Subclass 800 Territorial Asylum (permanent) visa;
• Class BS Subclass 801 Partner (permanent) visa;
• Class BT Subclass 802 Child (permanent) visa;
• Class BP Subclass 804 Aged Parent (permanent) visa;
• Class UK Subclass 820 Partner (temporary) visa;
• Class BU Subclass 835 Remaining Relative (temporary) visa;
• Class BU Subclass 836 Carer (permanent) visa;
• Class BT Subclass 837 Orphan Relative (permanent) visa;
• Class BU Subclass 838 Aged Dependent Relative (permanent) visa;
• Class CD Subclass 851 Resolution of Status (permanent) visa;
• Class DH Subclass 852 Referred Stay (permanent) visa;
• Class XA Subclass 866 Protection (permanent) visa; and
• Class TF Subclass 995 Diplomatic (temporary) visa.

[3] See Migration Act, s 82(8).

[4] See Migration Act, s 5(1); See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft [2021] HCA 19; (2021) 273 CLR 21.

[5] See Migration Act, s 32(a)(ii).

[6] Migration Regulations, Sch 5, Cl 5001(c)(i).

[9] See Crimes Act 1914 (Cth), s 85ZR(2); Children (Criminal Proceedings) Act 1987 (NSW), s 15; Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6; (2024) 98 ALJR 475.

[23] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [64]-[65].

[25] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582, [22].

[26] Ibid. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398, [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594, [6].

[27] Direction, cls 4(1), 5.1(4); Migration Act s 499(2A).

[28] See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, [33].

[29] Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582, [23], [81].

[30] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

[35] Direction, cl 5.1(3) and Annexure A; See also Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652, [40] (not disturbed on appeal, [2025] FCAFC 78).

[36] See Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666, [63].

[37] Migration Act, s 501(7)(c).

[38] Migration Act, s 501(7)(d).

[39] See ASFIC, [8]-[10]; RSFIC, [28].

[40] As to which see Migration Act, s 5AB; Pearson v Commonwealth of Australia [2024] HCA 46; (2024) 99 ALJR 110, [50], [61]-[62]; R v Pogson [2012] NSWCCA 225; (2012) 82 NSWLR 60, [97]-[98]; Crimes Act 1914 (Cth) ss 13, 20(1)(b).

[43] See Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333, [94].

[44] See Re RRRB and Minister for Immigration and Multicultural Affairs [2025] ARTA 471, [74].

[46] See ASFIC, [12]; closing submissions.

[48] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41].

[66] See Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCFAC 82, [22]-[23], [27[-[28]; Price v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 171; (2023) 301 FCR 484, [71]-[72].

[70] As to which see Re Anane and Minister for Immigration and Multicultural Affairs [2025] ARTA 822, [82]-[85].

[79] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76].

[87] Direction, cl 9.1(1). See also NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, [3], [9]-[10]; Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146, [84], [88].

[88] See also Migration Act s 46(1)(d).

[89] See Stoneley and Minister for Immigration and Multicultural Affairs [2025] FCA 143, [36].

[90] See Migration Regulations, Sch 2, cl 309.324.

[99] See https://www.workandincome.govt.nz/eligibility/moving-to-nz/index.html.

[101] See https://www.pars.org.nz/about.

[102] See https://tepaa.nz/our-organisation/.

[103] Exhibit 1, pp 565-566; ASFIC, [64]-[68].

[104] See CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [27]-[28]; VZWF v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1160, [8].