Denison and Minister for Immigration and Border Protection (Migration)
[2017] AATA 2707
•18 December 2017
Denison and Minister for Immigration and Border Protection (Migration) [2017] AATA 2707 (18 December 2017)
Division:GENERAL DIVISION
File Number(s): 2016/6428
Re:Ong Chin Jui, Denison
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:18 December 2017
Place:Hobart
The decision under review, being the decision of the delegate of the Minister dated 31 October 2016 not to revoke an earlier decision to cancel the applicant’s visa, is set aside and the original decision, dated 22 December 2015 to cancel the applicant’s visa, is revoked.
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A G Melick AO SC, Deputy President
MIGRATION – mandatory cancellation of visa – character test – term of imprisonment – whether discretion to revoke mandatory cancellation should be exercised – Direction No. 65 – primary considerations – protection of the Australian community – risk to the Australian community – applicant’s risk of reoffending – other considerations – strength, nature and duration of ties – impact upon victims – extent of impediments if removed – decision under review set aside
Legislation
Migration Act 1958 (Cth) ss 499, 501, 501CA
Cases
Singh (Migration) [2017] AATA 850
V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259
Wang and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 555Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 108
Secondary Materials
Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7, 8, 13(2), 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14(1)(b), (d) and (e)
REASONS FOR DECISION
A G Melick AO SC, Deputy President
18 December 2017
BACKGROUND
The applicant is a 26 year old Malaysian citizen who came to Australia on 24 September 2007. He has been a permanent resident of Australia since 16 March 2010, when he was granted a Class BS, Subclass 801 Residence-Combined Spouse visa.
In April 2015, the applicant was convicted of causing grievous bodily harm and taking part in an affray. He was sentenced to a term of imprisonment of 18 months. This was the most serious of his three offences involving violence.
On 22 December 2015 the applicant's visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (the Act). His visa was cancelled because the delegate of the Minister was not satisfied that he passed the character test defined in s 501 and as required under s 501CA(4)(b)(i) of the Act.
On 15 January 2016 the applicant made representations through his migration agent seeking revocation of the mandatory visa cancellation decision in accordance with s 501CA(4)(a) of the Act. In a letter dated 31 October 2016 the delegate informed the applicant that, after considering all relevant matters, they had determined they could not be satisfied that another reason to revoke the cancellation decision existed. Accordingly, pursuant to s 501CA(4)(b)(ii), the mandatory cancellation decision remained in place.
The applicant applied to the tribunal on 28 November 2016 for review of the decision not to revoke the cancellation decision.
During the hearing on 27 July 2017, the applicant produced evidence that had not been before the delegate. This evidence included a report and evidence from a psychologist which was relevant to the probability of the applicant reoffending.
EVIDENCE
Offences
On 22 April 2012 the applicant was involved in an altercation involving two groups of young men. The victim in this altercation received several injuries, including a brain injury that resulted in his hospitalisation.
On 14 April 2015 the applicant was convicted in the Supreme Court of Tasmania on one count of causing grievous bodily harm and one count of taking part in an affray. He was sentenced to 18 months imprisonment with a non-parole period of nine months. He was released on 30 June 2016. The applicant’s co-offenders received terms of imprisonment of 12 and 15 months respectively.
The sentencing judge commented that there had been a ‘very violent retaliatory if not retributive and punitive action’ against someone who was ‘virtually helpless on the ground’ and that this ‘level of violence went far beyond what was needed to deal with the situation’.
The applicant had two relevant prior convictions: disturbing the peace by fighting and common assault. These offences occurred in July and October 2011 respectively, and in both cases, he pleaded guilty. The applicant was convicted and ordered to pay costs on the first offence and to perform 77 hours of community service on the second.
Applicant
The applicant gave evidence by videolink, having been removed to Christmas Island approximately three months after his release from gaol. I found that his evidence was generally reliable and that he has made a genuine, and apparently successful, effort to rehabilitate himself.
The applicant indicated that he had experienced difficulty controlling his anger from a relatively young age. He then stated that the last offences (which occurred in April 2012) shook a sense of reality into him. This caused him, in early 2013, to remove himself from Tasmania where he had become involved with undesirable elements leading up to those offences.
Whilst awaiting his court case for the April 2012 offences, the applicant found employment as a chef in Melbourne. Around the same time, he entered into a relationship with Ms Shalisa Pupuke. She remains his partner. The applicant said that he had been ‘pretty calm’ since moving in with Ms Pupuke and that he felt that he had matured.
The applicant commenced anger management sessions and gave evidence that these taught him to walk away from things. The sentencing judge commented that his participation in these sessions showed ‘a very positive side’ of the applicant and indicated ‘a capacity to become a responsible citizen’.
Shalisa Pupuke
Ms Pupuke began a relationship with the applicant shortly after he moved to Melbourne in 2013. In her evidence, she indicated that she spent quite some time with the applicant before making the decision to live together. She stated that she had been aware of his criminal history and his impending trial.
Ms Pupuke indicated that the applicant had initially had some anger management problems. She opined that these arose from his estranged relationship with his father with whom he unsuccessfully attempted to reconcile. Ms Pupuke also stated that she had helped the applicant to obtain counselling and that after several sessions (which other evidence suggested were four sessions) the counsellor, and she, were satisfied that his issues had been successfully addressed.
Ms Saronjini Mall
Ms Mall is the applicant's mother. She indicated that the applicant had anger problems from a young age and had ended up with the ‘wrong crowd’. Ms Mall gave evidence that the applicant and his sister did not know their father as he had left when they were very young. She confirmed that the applicant had made unsuccessful attempts at reconciliation with his father.
Ms Mall did not move to Melbourne when the applicant left Tasmania in 2013. Accordingly, she could not give any meaningful evidence about his change of character after he addressed his anger management issues.
Ms Denisha Ong
The applicant’s sister, Denisha Ong, gave evidence consistent with her mother and spoke of the applicant’s strong family ties and his love of her young son. Ms Ong provided a written statement and adopted this in her evidence at the hearing. However, I agree with the respondent's submissions to the effect that she exaggerated aspects of her evidence which she thought would assist the applicant.
Ms Christana Morgan
Ms Morgan was the applicant’s employer at his job in Melbourne. At the time of the hearing, she had employed the applicant as a chef for approximately two months and considered him to be very hard-working and very talented.
Ms Morgan stated that the applicant is innovative with his food preparation, that his menus were very popular with her clientele and that, at the time of the hearing, she had been unable to replace him. She said that notwithstanding his criminal convictions, she would willingly reemploy him should he regain his visa. Importantly, Ms Morgan gave no evidence of the applicant demonstrating any anger management issues whilst he was working in what I assume can often be a stressful environment, especially during peak meal periods.
Dr Jacqueline Yoxall
Dr Yoxall, a psychologist, interviewed the applicant by telephone. She was satisfied that the method of interviewing, although not preferable, was sufficient for her to reach an appropriate clinical judgment.
Dr Yoxall gave evidence of her use of two long-standing clinical tools: the Violence Risk Appraisal Guide (VRAG) and The Level of Service Inventory – Revised (LSI-R). She stated that these are widely researched and validated assessment tools used to assess the risk of reoffending.
The VRAG assessment placed the applicant in the category in which 44% reoffend within a seven year period and 58% reoffend within a 10 year period. As the respondent noted, this is not a low risk. However, the LSI-R predicted an 11.7% chance of the applicant reoffending and Dr Yoxall indicated that both assessment tools should be considered together and with an overlay of clinical judgement which further, in her opinion, reduced the risk of the applicant reoffending.
Dr Yoxall considered that the applicant's remorse was genuine, that his goals for improvement were achievable and that the only substantial risks which might lead to his reoffending were a return to alcohol abuse or problems in his relationships with his family and/or partner. Taking all things into account, she considered that the applicant had a low risk of reoffending consistent with a cursory assessment conducted whilst he was in prison.
I am mindful of the fact that the applicant’s improved behaviour, resolution of his anger management issues and generally increased maturity all occurred whilst he was in a constrained environment awaiting trial and potential imprisonment. However I note that if the applicant's visa is returned, he will also be in a constrained environment and aware that reoffending would once again result in the loss of his visa with little chance of having that decision revoked.
CONSIDERATION OF RELEVANT LEGISLATION AND PRINCIPLES
Legal Framework
Section 501(3A) of the Act requires the cancellation of a visa if the Minister is satisfied that the visa holder has a substantial criminal record and is serving a sentence of imprisonment. A person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more (s 501(7)).
A cancellation decision may be revoked under s 501(3A) if the person makes representations about revocation and the Minister is satisfied that either the person passes the character test or ‘there is another reason why the original decision should be revoked’ (s 501CA(4)).
Section 499 of the Act provides that the Minister may give directions to a person or body having functions or powers under the Act where those directions relate to the performance of those functions or the exercise of those powers (s 499(1)). A direction given under s 499 must be complied with (s 499(2A)).
Policy guidance about relevant factors for the purposes of considering whether or not to revoke the cancellation decision has been provided in the form of Direction No. 65.
Direction No. 65
Direction No. 65 is entitled ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’ (the Direction). Section 1 of the Direction contains its Preamble, within which are described ‘Objectives’ (6.1), ‘General Guidance’ (6.2), and ‘Principles’ (6.3).
The purpose of paragraph 6.2 of the Direction is to provide general guidance to the Tribunal in relation to the legislative character test and the exercise of its discretion to revoke a visa cancellation decision. This paragraph states:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 sets out the relevant principles to be applied by the Tribunal and provides a framework for its determination:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to 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.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
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(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7 of the Direction provides guidance to a decision-maker about the exercise of the discretion, namely that the relevant ‘Primary Considerations’ (contained in Parts A, B or C of the Direction) ‘must’ be taken into account. A decision-maker taking these considerations into account is also to be informed by the principles set out above in this decision. Paragraph 8(4) of the Direction also provides that ‘[p]rimary considerations should generally be given greater weight than the other considerations’.
When deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 13(2) sets out three primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraphs 13.1-13.3 of the Direction list ‘factors’ and ‘principles’ to be used by a decision-maker in their assessment of the three primary considerations set out above. My discussion of these is set out below in these reasons at paragraphs 39 to 54.
When making decisions regarding the revocation of a mandatory visa, paragraph 14(1) provides a non-exhaustive list of other considerations which must be taken into account where relevant. I consider the following to be relevant to my decision in this matter:
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b) Strength, nature and duration of ties;
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d) Impact on victims;
e) Extent of impediments if removed
PRIMARY CONSIDERATIONS
There is no doubt, and it was conceded by the applicant, that he does not pass the relevant character test. Accordingly, I must be satisfied that ‘another reason’ to revoke the cancellation of his visa exists within the meaning of s 501CA(4)(b)(ii) before his application in this Tribunal can succeed. As I have described above, the considerations I am obliged to take into account are set out in the Direction.
Primary consideration one: 13.1 Protection of the Australian community
Paragraph 13.1(1) provides that when considering the protection of the Australian community, I should:
… have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. …
Paragraph 13.1(2) provides additional considerations that decision-makers should have regard to, namely ‘[t]he nature and seriousness of the conduct’ and ‘[t]he risk to the Australian community’. How these additional considerations are to be taken into account is set out in subparagraphs 13.1.1 and 13.1.2 through lists of mandatory ‘factors’.
13.1.1 The nature and seriousness of the conduct
In respect of paragraph 13.1.1, I consider the following three factors contained in 13.1.1(1) to be relevant to this matter:
(a) [V]iolent … crimes are viewed very seriously;
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(c) The sentence imposed by the courts for a crime or crimes;
(d) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
13.1.1(1) (a) …[V]iolent … crimes are viewed very seriously
The sentencing judge’s comments regarding the applicant’s April 2012 offences make it clear that these involved considerable violence. I note that the judge remarked that the applicant’s actions were ‘very violent and retaliatory, if not retributive and punitive action’ and were against someone who was ‘virtually helpless on the ground’. His Honour also found that the ‘level of violence went far beyond what was needed to deal with the situation and involved a brutal attack on a defenceless man’ and noted that the attack was ‘not an uncharacteristic, isolated event’.
13.1.1(1)(c) The sentence imposed by the courts for a crime or crimes
The applicant was sentenced to 18 months imprisonment for the April 2012 offences whereas his two co-offenders, with whom he was found to be acting in concert, received sentences of 12 and 15 months imprisonment respectively. It appears that the 15 month sentence was imposed because that offender had a record with fewer offences of violence, whilst the offender receiving the 12 month sentence was accepted to have been less involved in the assault.
13.1.1(1)(d) The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness
As noted above at paragraph 10, the applicant had two prior convictions for offences involving violence although the first one appears to have been minor in nature (a conviction was recorded but only accompanied by an order to pay costs). However, the applicant had been placed on good behaviour bond for two previous incidents before being ordered to undergo 77 hours community service for his conviction regarding the assault which occurred on 9 October 2011.
It is clear that there was a trend of increasing seriousness culminating in the offences of April 2012. It is also of concern that the applicant, who was 16 when he arrived in Australia, exhibited signs of violent behaviour by the time he was 18 and committed serious criminal offences at the age of 21.
A mitigating factor in this case is that the non-offending behaviour during the three year constrained period whilst the applicant was awaiting trial appears to indicate that his changed circumstances and the undergoing of an anger management course have had a positive effect on his behaviour.
13.1.2 Risk to the Australian Community
I am required by the Direction to have regard to the principle that the Australian community's tolerance for any risk of future harm lessens as the seriousness of the potential harm increases.
The respondent contended that the applicant's history demonstrates a pattern of increasingly serious harm being inflicted, evidenced by the 2012 offences which resulted in serious, and potentially fatal, injuries to another person. The respondent submitted that a real and significant risk exists that the conduct may be repeated. It was fairly noted that the applicant has not committed any offences since April 2012, albeit his confinement in a constrained environment. The respondent contended that no rehabilitation (by the applicant) had been tested or demonstrated in an open situation where he was not constrained in some way.
Accordingly, the respondent’s submission is that even if the prospects of the applicant reoffending are low, it would be a low risk of a serious consequence and would be regarded as an unacceptable risk to the Australian community (see Wang and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 555 at [107], upheld on appeal in Wang v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 108 and V324 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 259). This submission highlights a major element in this matter, especially when considering 6.3(4) of the Direction.
Primary consideration two: 13.2 Best interests of affected minor children in Australia
The applicant has no children but does have a nephew born to his sister, Ms Ong, on 1 October 2015. His nephew was born whilst he was in prison and he has only seen him on two occasions. Although it may be desirable for a nephew be able to develop a relationship with his uncle, it is difficult to see how the absence of such a relationship, especially one which is yet to start, could have a major effect on the nephew. I do not find that this consideration has any significant relevance to the applicant’s situation.
Primary consideration three: 13.3 Expectations of the Australian community
As noted by the respondent, the Direction states that ‘[t]he Australian community expects non-citizens to obey Australian laws while in Australia’. Whilst it may be appropriate not to revoke a visa cancellation if the nature of the offence is such that the Australian community would expect the person should not hold a visa, decision-makers should also have regard to ‘the Government's views in this respect’.
The ‘Government's views’ are reflected in the principles at paragraph 6.3 of the Direction. According to paragraph 6.2(1), those principles are ‘of critical importance’ in furthering the objective of ‘protecting the Australian community from harm as result of criminal activity’ of non-citizens. The Direction states that these ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’.
The respondent contended that the principles indicate that the Australian community expects its government to cancel the visas of non-citizens who commit serious crimes and that such persons should generally expect to forfeit the privilege of staying in Australia.
The applicant contended that in this case, the community would expect the Minister to revoke the visa cancellation decision and allow him to remain in Australia. He further contended that a balanced consideration would show he poses no threat to the protection of the community and reinstating his visa would be consistent with community expectations.
I am of the view that, if satisfied there was no significant risk of the applicant reoffending, the community would not expect the Minister to refuse to revoke the cancellation of the applicant’s visa.
Other considerations – revocation requests
As stated above at paragraph 37, a non-exhaustive list of ‘other’ considerations is provided in paragraph 14(1) of the Direction. I consider the following to be relevant to my decision: the strength, nature and duration of the applicant’s ties (14(1)(b)); the impact on the victims of the applicant’s offences (14(1)(d)); and the extent of impediments the applicant may face if he is removed from Australia (14(1)(e)).
Strength, nature and duration of ties
The applicant came to Australia when he was 16 and committed his first violent offence some 21 months later. The applicant became a permanent resident on 16 March 2010 and his mother has been a citizen since September 2015. Of the nine years he has spent in Australia, the applicant has spent 15 months in prison.
The applicant has both family and social ties in Australia, although I note that his mother lives in Hobart and did not move to Melbourne when her son moved and commenced living with his partner. He appears to have a strong relationship with his partner and her immediate family, some of whom are in Australia, and claims to be close to his sister, despite relatively infrequent contact. His strongest ties would appear to be to his partner and, to a certain extent, his former employer.
The applicant still has ties to Malaysia, despite being estranged from his father, and has visited there for several weeks at a time in both 2010 and 2014.
I do not place much weight upon this factor except insofar as it is relevant to the consideration of the likelihood of him reoffending now that he has matured and has strong reasons to remain in Australia.
Impact upon victims
It is apparent from the court records that all participants in the fight which resulted in the April 2012 offences were intoxicated, with the victim being more heavily intoxicated than the applicant and his co-offenders. The applicant has only seen the victim on one occasion since the incident, that being at his trial. The applicant now lives interstate and there is no ongoing relationship between him and his victim. In light of this, I find it unlikely that the non-revocation of the applicant’s visa will have any considerable impact upon the victim.
Extent of impediments if removed to home country
Although the applicant does not have a close relationship with his father, there was no suggestion or evidence given at the hearing that the applicant would come to harm if forced to return to Malaysia. Having lived in Malaysia until the age of 16 and only living in Australia for nine years, I do not consider the applicant would face any significant cultural or language difficulties in Malaysia. I do note that it appears that all relatives with whom he has contact currently reside in Australia. He is young with no apparent health problems and I am satisfied that there are no significant impediments to his removal to Malaysia.
CONSIDERATION
Weighing up all the above considerations I find that none, or any combination, are of sufficient weight to revoke the cancellation decision should I find that a reasonable risk of the applicant reoffending exists and hence that he poses a risk to the Australian community.
On the information available to the delegate who made the reviewable decision dated 31 October 2016, I would have reached the same conclusion. However, as is usually the case, there was more information available when the application came before the Tribunal.
I find that a low risk of the applicant reoffending exists and hence that the risk to the Australian community is also low for the following reasons:
(a)the psychiatric evidence of Dr Yoxall referred to at paragraphs 22 to 26 above;
(b)when considering the weight to be given in isolation to the risk assessment tools employed by Dr Yoxall, without the overlay of her clinical opinion, I am guided by the decision of Logan J in Singh (Migration) [2017] AATA 850. In that case, no formal risk assessment had been completed and when considering this, his Honour stated at [62] that:
Even if there were [a formal risk assessment], the utility of such assessments is moot and their uncritical reception to the detriment of considering the overall circumstances of an individual case is apt to be fraught.[1] The only absolute protection for the community would be to keep Mr Singh in immigration detention. But the effect of the Act and Regulations is that a value judgement must be made, and, under our law, it must be a reasonable one.
(c)the fact that the applicant will continue to live in a constrained environment in that he realises that further offending would result in the revocation of his visa with a greatly reduced chance of succeeding in another application;
(d)I place particular weight on the comments of the sentencing judge who noted:
‘[t]here is nothing to suggest that he has not been of good behaviour since this incident. I was today given four references, including one from his employer. They show a very positive side to the defendant and indicate a capacity to become a responsible citizen.’
(e)the applicant attempted to do an anger management course when he was imprisoned but none were available. He undertook one as soon as possible thereafter and this appears to have had the appropriate results;
(f)the applicant was a valued employee of Ms Morgan, albeit for a short period of time, and she has stated a strong desire to re-employ him because of his abilities as a chef;
(g)apart from some issues noted by his partner prior to his attendances at an anger management course, there have been no anger management issues or evidence of loss of control or temper since his release from prison and there was no evidence of any such issues arising whilst the applicant was awaiting trial; and
(h)the applicant has a strong relationship with his partner and has clearly matured considerably since the offences. His maturity has been demonstrated, inter alia, by his not offending during the three year period when on bail.
[1] The following footnote has been extracted from the decision in Singh (Migration) [2017] AATA 850: ‘See I R Coyle, The Cogency of Risk Assessments, Psychiatry, Psychology and Law, Vol 18, No 2, May 2011, pp 270-296; D J Cooke and C Michie, The Generalizability of the Risk Matrix on Model Shrinkage and the Misinterpretation of the Area Under the Curve, Journal of Threat Assessment and Management 2014, Vol 1, No 1, 42-55; M Noferi and R Koulish, The Immigration Detention Risk Assessment, Georgetown Immigration Law Journal,2014, Vol 29, pp 45-94; R Koulish, Immigration Detention in the Risk Classification Assessment Era, 2016, Vol 16, No 1, Connecticut Public Interest Law Journal, pp 1-37; P Keyzer (ed), Preventative Detention: Asking the Fundamental Questions (2013), at p 8, p 193 (the whole chapter) p 223 (the whole chapter).’
I will now deal with the consideration raised by the respondent which I have outlined above at paragraph 47 in these reasons. Namely, that because of the seriousness of any consequences likely to arise from any reoffending by the applicant, this risk would be regarded as an unacceptable risk to the Australian community.
Crimes have varying degrees of seriousness, as do their consequences. If the offences and crimes of which the applicant has been convicted were in the nature of, for example, attempted murder or predatory sexual offences, then this consideration would cause me to affirm the revocation decision. However, I consider that the applicant’s last offence, although serious and with potentially serious consequences, falls short of the type of offence envisaged by 6.3(4) of the Direction. Accordingly I do not find that revocation of the cancellation decision should be regarded as an unacceptable risk to the Australian community.
DECISION
In balancing all of the abovementioned considerations, I find that there is another reason why the original decision should be revoked under s 501CA(4)(b)(ii) of the Act.
The decision under review, being the decision of the delegate of the Minister dated 31 October 2016 not to revoke an earlier decision to cancel the applicant’s visa, is set aside and the original decision dated 22 December 2015 to cancel the applicant’s visa is revoked.
I certify that the preceding 68 (sixty -eight) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President
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Associate
Dated: 18 December 2017
Date(s) of hearing: 27-28 July 2017 Date final submissions received: 14 August 2017 Counsel for the Applicant: Ms J Samuta Solicitors for the Applicant: Samuta McComber Lawyers Counsel for the Respondent: Mr D Wilson Solicitors for the Respondent: Australian Government Solicitor
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