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

Ali and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2776 (2 August 2023)
Division:GENERAL DIVISION
File Number(s): 2022/6810
Re:Waitaz Taufeem Ali
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:2 August 2023
Date of written reasons: 31 August 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
..............[sgnd]..........................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – mandatory cancellation of visa – applicant does not satisfy character test – whether another reason for revocation of cancellation decision – Direction 99 – sexual assault – past family violence – low risk of reoffending – strength, nature and duration of ties to Australia – applicant has wife and three minor children in Australia – family’s circumstances straitened – applicant more likely to make meaningful financial contribution to family if working in Australia – best interests of minor children weigh significantly in applicant’s favour – decision under review set aside
LEGISLATION
Migration Act, 1958 (Cth)
CASES
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member Dr N A Manetta
31 August 2023

After I delivered my decision with oral reasons on 2 August 2023, I received a request for written reasons, which I now publish.[1] These reasons are those that were read out to the parties, with relatively minor amendments.
[1] These written reasons include certain standard paragraphs, especially paragraphs [9] and [18].
This is an application by Mr Waitaz Taufeem Ali seeking a review of a decision of the respondent’s delegate dated 26 July 2022. By this decision the delegate declined to revoke the cancellation of Mr Ali’s five-year resident return visa,[2] which had taken place earlier, and mandatorily, under section 501 of the Migration Act, 1958 (Cth) (“the Act”). Mr Ali had been convicted of the very serious offence of sexual assault with a circumstance of aggravation. After pleading guilty, he was sentenced to 15 months’ imprisonment and was required to serve two months of that term full-time in jail, after which the balance of the sentence was suspended for two years (from the date of sentence).
[2] By virtue of this decision, Mr Ali’s permanent resident’s visa was also cancelled: see section 501F(3) of the Act.
As I have indicated, Mr Ali’s visa was cancelled mandatorily under the Act. As he had been sentenced to a term of imprisonment of at least 12 months part of which was required to be served on a full-time basis in jail, there is no doubt that the initial cancellation was required by law.
Mr Ali applied to have the cancellation of his visa reviewed internally and revoked. This application was made in July 2019, but the delegate only reached a decision three years later, on 26 July 2022. Although it is not a matter that affects my review as such, I do note the very lengthy period taken by the delegate to reach a decision in this matter. That is a circumstance that raises some concerns about the fair progressing of Mr Ali’s application for internal review.
The internal-review delegate was required to address two questions. First, the delegate was required to decide whether Mr Ali passed the so-called “character test” as defined under the Act; and, if not, the delegate had next to decide whether there was “another reason” for the cancellation decision to be revoked.[3] The delegate decided ‒ and there is no doubt the delegate reached the right conclusion in this regard ‒ that Mr Ali did not pass the so-called “character test”.[4] His criminal conviction required that conclusion. Secondly, the delegate, when addressing the second of the two questions I have identified, applied and weighed Direction no. 90[5] then in force under section 499 of the Act.
[3] See section 501CA(4)(b) of the Act.
[4] By virtue of section 501(7)(c) of the Act.
[5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
After applying Direction no. 90, the delegate decided that, on balance, there was not “another reason” warranting the revocation of the cancellation decision. The delegate declined, therefore, to revoke the decision.
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence before me, I must address the same two questions as the delegate. I have already indicated that the answer to the first question given by the delegate was clearly correct in light of Mr Ali’s conviction for a serious sexual assault. Like the delegate, I must apply any direction issued under section 499 of the Act when considering the second question.
Since the delegate’s decision, Direction no. 90 has been repealed and Direction no. 99[6] has taken its place. Neither party submitted that I should apply the repealed direction as part of my review, and I proceed on the basis that the correct direction to apply is Direction no. 99.
[6] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
In exercising its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[7] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
[7] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [98] and [141].
At the hearing before me, Ms Samuta appeared for the applicant; Mr Burgess, for the respondent. I acknowledge their assistance to me.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I now turn to set out the background facts and the reasons for this conclusion.
BACKGROUND FACTS
Mr Ali was born in Fiji on 25 May 1980 and is, therefore, 43 years of age. He moved to Australia in 2013. He is married and has three children. The oldest is 13 years of age (as at the date of my decision); the second oldest, 12; and the youngest, 8. Before being jailed, Mr Ali had held a number of positions, including at Kmart Tyres and Auto and RACQ Patrolman; and he had also worked as a mechanic at a local service station. The respondent notes in its Statement of Facts Issues and Contentions that this should be taken to amount to some positive contribution to the community.[8] I accept that submission.
[8] See Ex R3, 10, [38].
Mr Ali’s criminal record was before me.[9] There is one recorded conviction, the sexual assault to which I have already referred. The sentencing remarks were also before me, and I accept them and rely on them.[10] The sexual offending arose in the following circumstances. Mr Ali contacted the victim, who was a sex-worker, and sought sexual services from her for money. In Queensland, where these events occurred, this type of agreement is permitted by law, and indeed the sentencing Court describes it as “a commercial transaction”.[11]
[9] Ex R1, 28.
[10] Ex R2, 26-29.
[11] Ex R2, 27.
The Court records the offending in the following terms. The victim was performing a sexual act on Mr Ali, when Mr Ali asked to perform a particular sexual act on her.[12] The victim responded “no”. Despite the victim saying “no”, Mr Ali began to perform the sexual act in question. The victim made it clear that he was to desist and stated, in fact, that he would end up in jail if he persisted. He did persist, and at one point he even hooked his arm around the victim’s leg to prevent her from escaping and to force her to submit to the act. Despite a further command to stop, Mr Ali did not desist. Mr Ali only stopped after some minutes and when he decided he wished to stop. The Court described the incident as one involving persistence and protraction, coupled with some force, and one that that was perpetrated over the victim’s repeated protestations.[13] The Court referred explicitly to Mr Ali ignoring his victim’s attempts to stop the offending.[14] The Court also said these factors distinguished the offending from other types of offending: they made the offending serious.[15]
[12] An act of cunnilingus.
[13] Ex R2, 27.
[14] Ibid.
[15] Ex R2, 28.
The sentencing Court found that the victim had suffered psychologically, emotionally, and socially as a consequence of the offending.[16] The Court observed that the victim was no less deserving of protection on account of her job as a sex-worker and that the seriousness of the offending was not diminished on that account.[17] The seriousness of the offending was compounded by the fact that the offence took place in the victim’s home.[18]
[16] Ex R2, 27.
[17] Ibid.
[18] Ex R2, 28.
The Court did note, however, that Mr Ali had been acting “very much out of character”.[19] The Court imposed a term of imprisonment of 15 months to be suspended after two months had been served in jail, with the proviso that if Mr Ali offended within two years of the date of sentence, he would be liable to serve the remaining 13 months.[20] The sentence was handed down on 28 May 2019.
[19] Ex R2, 29.
[20] Ibid.
As I understand matters, Mr Ali’s visa was cancelled while he was in jail. Shortly after his release, he elected to leave Australia for Fiji so as to avoid mandatory detention.
REASONS
Considerations arising under the Direction
I now turn to Direction no. 99. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat here:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
I now turn to apply the Direction. There are five so-called “primary considerations” for me to consider and weigh. The first primary consideration is the protection of the Australian community. Paragraph 8.1(1) requires me to bear in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by the noncitizen. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on noncitizens in the expectation they will not cause or threaten harm to individuals or the Australian community. I bear this in mind.
Subparagraph (2) requires me to give consideration to the nature and seriousness of the noncitizen’s conduct to date and the risk to the Australian community should he or she commit further offences or engage in other serious conduct.
At this juncture, I would note that I am satisfied that Mr Ali has engaged in family violence toward his spouse. A protection order was taken out under the Domestic and Family Violence Protection Act, 1989 (Qld) in 2010.[21] The report before me indicates that Mr Ali had punched his wife on two occasions on the one day (viz, 14 October 2010). [22] On the first occasion at least, the victim was carrying their five-month old baby, and the report indicates one blow glanced off the victim and hit the baby. Mr Ali’s spouse suffered lacerations, bruising and swelling, and she called an ambulance. I do not see any reason to doubt her report to police that this sort of assault had happened on “a number of occasions prior to this event”.[23] In fact she had left Mr Ali in the past and only returned to live with him when she found out she was pregnant. The police report notes that she had left Mr Ali “due to being punched and slapped on a number of occasions” and that Mr Ali “had even hit her when she was pregnant”.[24]
[21] Ex R2, 53ff.
[22] Ex R2, 58
[23] Ibid.
[24] Ibid.
There is no information before me concerning any family violence after this date.
Paragraph 8.1.1(1)(a) requires me to regard both the family violence and the sexual assault, to which I have already referred, very seriously. These crimes were both violent and/or sexual. They also involved crimes against a female spouse (and it would also appear against a child so far as the glancing blow is concerned). I am not to diminish the seriousness of the family violence because of the lack of any conviction or sentence. Subparagraph (c) requires me to have regard to sentences imposed by the courts. I have had regard to the sentence for sexual assault, which I note was long (15 months) and the offending was considered by the Court to be a serious instance of offending. But I note that the offending also involved an element of violence; and so, in any event, I should not use the sentence to diminish the seriousness to be accorded the offending. This is implied by the opening words of subparagraph (c).
I accept that so far as subparagraph (d) is concerned, there is no frequency in the sexual offending. There is, however, a frequency in the family violence. And I further accept that the sexual offending itself represented an escalation in Mr Ali’s offending in that sexual violence against a non-family member represented a new and most serious development. So far as subparagraph (e) is concerned, there is a clear cumulative effect in the instances of family violence, and I take that into account.
Under paragraph 8.1.2(1), 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 and that some harm, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. I bear that principle in mind.
Subparagraph (2) requires decision-makers to have regard to a number of matters “cumulatively” when assessing the risk that might be imposed by the noncitizen to the Australian community. The first is the nature of harm to individuals or the Australian community should the noncitizen engage in further criminal or other serious conduct: see subparagraph (a). Under this subparagraph, I must assume that Mr Ali will engage in further family violence directed towards his wife (or another partner) and that that he will engage in further sexual assaults. In both cases, on the assumption the offending occurred, the resultant harm would be very severe. Both sexual assault and family violence against women represent very serious crimes. They are prevalent in our community. The Direction pays particular and close attention to sexual and violent crimes against women. This marks out the applicant’s offending as particularly serious. I acknowledge that.
Under subparagraph (b) of paragraph 8.1.2(2), I am to have regard to the likelihood of Mr Ali reoffending given the information and evidence on risk and rehabilitation available to me, and giving weight to the time Mr Ali has spent in the community since his most recent offending.
So far as the family violence is concerned, there is no evidence that Mr Ali has engaged in further family violence since 2010. It will be recalled that in 2010 two assaults occurred on the one day that prompted his wife to report the matter to police, whereupon a protection order was sought. In the absence of evidence, I think I should proceed on the basis that there has not been further violence, and that the order has had its desired deterrent effect. Given that Mr Ali was taken into custody in 2019, there was a period, therefore, of some nine years when there had not been any recorded report of family violence. That is a significant period of time. Moreover, Mr Ali will understand from his conviction and jailing, if he did not understand before, that violence against women (whether sexual or not) can lead to a conviction, jail, and the termination of one’s right to stay in Australia. All in all, I regard the risk of further family violence as low.

The risk of further sexual offending is difficult to estimate. I have had the benefit of a psychological report prepared by Dr Yoxall,[25] but I have not accepted the reasoning in the report. At paragraph [9.1],[26] Dr Yoxall notes that Mr Ali accepts responsibility for his offending and demonstrates remorse for it. That observation is not consistent with Mr Ali’s evidence to the Tribunal. At para [33] of his statement,[27] Mr Ali says that he mistook his victim’s resistance because he thought they had agreed that he could perform the sexual act in question upon her. Moreover, at para [38] of his Statement of Facts Issues and Contentions,[28] Mr Ali formally submits that the offending occurred in the context of a misunderstanding between him and his victim where he wrongly understood her to have consented to the sexual act in question.
[25] Ex A1, 12ff.
[26] Ex A1, 24.
[27] Ex A1, 3.
[28] Ex A2, 8.
I do not accept this submission or Mr Ali’s evidence in support of it. The sentencing remarks make it quite clear that the victim was unambiguously explicit in her repudiation of Mr Ali’s advances. There is nothing in the sentencing remarks that indicates the Court accepted that Mr Ali was confused or uncertain. And in any event, the protracted nature of the offending and the degree of force used to perpetrate it are inconsistent with Mr Ali’s submission in this regard. I do not accept, therefore, the observation in the expert report that Mr Ali is remorseful, in the sense of appreciating and regretting the harm he has caused to his victim. That conclusion undermines substantially the reliability of the final conclusion in the report, in my view.
I do accept, however, that Mr Ali has, in one sense, lost an enormous amount on account of his offending, and this loss must have made an impression upon him. He was jailed and then was, in effect, forced to leave Australia for Fiji to avoid mandatory detention. He has been absent for some four years now. I believe he understands that if he sexually assaults a sex-worker again, he will pay for it dearly. That is a strong deterrent.
I had initially thought that the fact that the sexual act in question could be the subject of a lawful “commercial transaction” in Queensland, where Mr Ali would live on his return from Fiji, might lessen his risk profile; but I have decided against that reasoning. Rape is not simply a crime of sexual gratification. Rather, it is often a crime associated with violence, where the gratification comes, at least partly, from the forced submission of the victim. That is something that I should bear in mind. There was a degree of force used by Mr Ali in his sexual assault. He may well have derived gratification from his victim’s struggle and lack of consent.
On the other hand, I note the absence of other sexual offending from Mr Ali’s criminal record, and I refer again to the sentencing Court’s observation that Mr Ali’s offending was out of character. As I have said, I believe there are strong deterrent factors operating in this case. All in all, I regard the risk of sexual reoffending as low.
I note again that this is a matter to be weighed “cumulatively” with the nature of the harm should Mr Ali reoffend.
Subparagraph (c) of paragraph 8.1.2(2) does not appear to be relevant.
Paragraph 8.2 requires me to have regard to family violence committed by the noncitizen, which is the second of the five primary considerations I am directed to consider. Without setting it out, I accept what appears in subparagraph (1) of paragraph 8.2. I note that under subparagraph (2), the fact that Mr Ali has not been convicted of a family-violence offence does not mean that the family violence he has perpetrated is to be ignored or discounted.
The evidence before me does not allow me to state precisely how extensive the family violence was: see subparagraph (3)(a). I have already indicated, however, that I accept that it occurred on multiple occasions, as mentioned in his spouse’s report to police in evidence before me. I accept that there was a trend of increasing seriousness in that the circumstance that finally persuaded Mr Ali’s wife to go to the police involved two events on the one day, and they involved an attack upon the victim when she was carrying their very young child. I accept that in the case of family violence there is a cumulative effect of repeated offending: see subparagraph (3)(b). In this case, the repeated offending had prompted the victim to leave Mr Ali briefly, and she was only persuaded to return by learning of her pregnancy. The violence must have been severe enough, therefore, to bring the marriage towards an end.
Rehabilitation[29] may be said to have been achieved partially on the assumption that there has been no further offending between 2010 and 2019, which is the basis on which I have proceeded in the absence of contrary evidence. However, I do not have evidence before me that the applicant accepts responsibility for his family-violence conduct, that he has understood the impact of that behaviour on his family, or that he has undertaken any therapeutic intervention to address the factors that led to his misconduct.
[29] See Paragraph 8.2(3)(c).
I note expressly the emphasis that the Direction gives to family violence.
The third of the five primary considerations is the strength nature, and duration of ties to Australia: see paragraph 8.3. Mr Ali has a wife and three minor children in Australia. I had before me a statement signed by Mr Ali’s spouse[30] that indicates very difficult circumstances for the family as at 1 February 2022. Paragraph [20] of the statement indicates that she and her three children were occupying a single bedroom in a shared house with her parents and her brother. The latter is recorded as having special needs. The circumstances of Mr Ali’s spouse and their children are clearly straitened.
[30] Ex R1, 75ff.
So far as Mr Ali’s spouse is concerned, I accept that, to the extent Mr Ali would earn more in Australia and provide more assistance to the maintenance of his children, she will be better off. I note, however, that no further statement or evidence after 1 February 2022 was placed before the Tribunal, nor was Mr Ali’s spouse called to give evidence. This leaves me in something of a quandary in deciding what weight to attach to her interests in resuming a marital relationship, if indeed that is still her plan. I do accept, however, that even if the marriage is at an end in terms of mutual support and affection, there is a need for Mr Ali to provide financial assistance to his spouse in the raising of their children. This will be better facilitated in Australia.[31] I do not attach weight, therefore, to Mr Ali’s spouse’s interests so far as the resumption of a marital relationship is concerned, but I do attach weight to her interest in his ongoing financial support.
[31] See Ex R1, 77 [33].
I must have regard to the best interests of minor children in Australia as the fourth primary consideration under the Direction: see paragraph 8.4. I consider that it is clearly in the best interests of the three children that their father return. I accept that any further episodes of family violence would be detrimental to their interests. Nevertheless, on the evidence before me, which suggests the last incident of family violence occurred in 2010, this is unlikely to be the case; and it is in the interests of the children that they receive income and moral support and affection from their father. I accept that the wages Mr Ali might be expected to earn in Fiji are less than the wages he would be expected to earn in Australia,[32] and that he would have good prospects of finding work in Australia given his employment history. It is true that the children have their mother as a parent, but it is also true that children benefit substantially from meaningful and positive contact with both biological parents. The submission was put that the children have lacked one-on-one contact with their father for some four years now, which is undoubtedly the case; but that does not necessarily mean that he is a stranger to them, or that he would not be welcomed back if he returned, or that he does not have a meaningful contribution to make to their future welfare. Like the delegate,[33] I attach significant weight to the best interests of the children.
[32] Ibid.
[33] Ex R1, 22 [41].
The fifth primary consideration I must weigh is the expectations of the Australian community: see paragraph 8.5. These count substantially against Mr Ali. I note the expectations apply whether or not Mr Ali poses a measurable risk of causing physical harm to the Australian community: see paragraph 8.5(3). As articulated in paragraph 8.5(1), the community’s expectations are clearly that noncitizens must obey Australian laws, and that “as a norm” a serious breach of the law will lead to an expectation that the Government will not allow the person to re-enter Australia. I note further that subparagraphs (a) and (c) of paragraph 8.5(2) cite acts of family violence and serious crimes against women as instances of conduct that give rise to special character concerns. I take that into account. I note further that by subparagraph (4) I am to take the expectations of the community as expressed in paragraph 8.5 as a given, without independently assessing them in a particular case.
There are a number of other considerations under paragraph 9. Mr Ali did not suggest in his Statement of Facts Issues and Contentions that these were relevant.[34] The respondent concurred in this view,[35] and I am content to decide the matter on this jointly agreed basis.
[34] See Ex A2, 14-15 [75}-[80].
[35] See Ex R3, 12 [48]-[51].
Weighing the Considerations
I turn now to weighing the various considerations. It is quite clear that Mr Ali has been guilty of very serious and antisocial offending both in respect of his family violence and in respect of the sexual assault upon the sex-worker. Both these matters raise very serious concerns. I have found the risk of these offences recurring low, although, importantly, not nil. These are very serious matters for me to weigh. On the other hand, Mr Ali’s prospects of supporting his family from Fiji are less than they would be if he resumed paid work here in Australia. Both his wife and more particularly his children have been the victims of the dysfunction he has brought upon his family through his offending. Children, in particular, are often the victims of the poor choices one or other parent makes. The circumstances of the family as recorded in the statement to which I have referred are properly described as straitened, as I have said; and there is, no doubt, a great deal of stress caused by a lack of money and suitable living arrangements. I also believe that the applicant might realistically at some point in the future, if not immediately, play a role in the moral support of his children as they go forward in life. But the financial support he would be expected to make in Australia would make a substantial difference in any event to their lives. Although Mr Ali’s wife did not provide up-to-date evidence or appear as a witness, her own interests from a financial perspective favour Mr Ali’s return to Australia.
The risk of reoffending is, in my opinion, low (although, as I have said, not nil). There is a strong deterrent effect held out to this applicant. He would know that further offending, and I include here any violence to his family, could well see him return to jail and face further deportation with all the consequential dislocation both for his family and, importantly, for himself. I do believe that these deterrent factors are significant in this case in limiting the risk in Mr Ali’s return to Australia. In making these observations, I do not wish to be understood as focussing solely on these factors as the Direction has, of course, a wider focus; but they are factors that are strongly relevant to my weighing of the various considerations relevant to my decision-making.
CONCLUSION AND FORMAL DECISION
On balance, and taking all matters into account under the Direction, I believe that the preferable or correct decision on the evidence favours revocation of the cancellation decision. Having reached that conclusion, I conclude that there is “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii) of the Act; and I shall set aside the decision under review and substitute a decision that the cancellation of Mr Ali’s visa be revoked.
I certify that the preceding forty-seven (47)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
……[sgnd]…………………………
Associate
Dated: 31 August 2023
Date of hearing:  28 April 2023
Advocate for the Applicant:      Jennifer Samuta
Samuta McComber Lawyers
Advocate for the Respondent:  Ashley Burgess
Sparke Helmore

[2023] AATA 2776

2 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Remedies

Statutory Construction