Eteuati and Minister for Home Affairs (Migration)

[2019] AATA 578

Eteuati and Minister for Home Affairs (Migration) [2019] AATA 578 (27 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/7529

Re:Emani Eteuati

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President A G Melick AO SC

Date:27 February 2019

Date of written reasons:        28 March 2019

Place:Sydney

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal decides the reviewable decision made on 12 December 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, is set aside.

In substitution, the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, made on 21 May 2018, is revoked.

...........................[sgd].............................................

Deputy President A G Melick AO SC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – failure to pass character test – criminal record – whether the discretion to revoke the cancellation should be exercised – Direction No. 65 – primary considerations –- protection of the Australian community from criminal or other serious conduct – nature and seriousness of conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community - other considerations – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) – ss 499, 501, 501CA

CASES

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

SECONDARY MATERIALS

Ministerial Direction No. 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

WRITTEN REASONS FOR ORAL DECISION

Deputy President A G Melick AO SC

28 March 2019

1. This is an application to revoke a decision of a delegate of the Minister for Home Affairs dated 12 December 2018 in which the delegate upheld the cancellation of the applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa, as required by section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) (‘the Act’), as the delegate was not satisfied that there was not another reason why the original decision should be revoked.

2. Section 501CA(4) of the Act enables the Tribunal to revoke the mandatory visa cancellation if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     the person passed the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

3. On 25 June 2018, Mr Eteuati made representations seeking revocation of the mandatory visa cancellation decision. These representations were made within the period and in the manner set out in the Regulations. Thus, I find the application made by Mr Eteuati is within the prescribed period.

   CHARACTER TEST

4. On 21 May 2018, Mr Eteuati’s visa was cancelled under section 501(3A) as the delegate was satisfied that he did not pass the character test because of the operation of section 501(6)(a) which provides that a person does not pass the character test if they have a substantial criminal record. The delegate found that Mr Eteuati had a substantial criminal record on the basis of section 501(7)(c) and because he was then serving a sentence of full-time imprisonment at the Macquarie Correctional Centre in New South Wales for a criminal conviction.

5. Section 501(7)(c) provides that for the purpose of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

6. On 2 May 2018, Mr Eteuati was convicted in the Local Court of New South Wales of affray, for which he was sentenced to 12 months in prison, eight of which were suspended.

7. I have considered the representation made by Mr Eteuati as well as the evidence produced at the hearing and note that the applicant concedes that he fails the character test. Accordingly, I’m not satisfied that Mr Eteuati passed the character test, as required by section 501CA(4)(b)(i) of the Act.

8. I now deal with whether there is another reason why the original decision should be revoked, pursuant to section 501CA(4)(b)(ii). When I say the original decision in this matter, I am referring to the second decision made by the delegate.

9. As Mr Eteuati has given evidence in accordance with section 501CA(4)(a) but has not satisfied me that he passed the character test as defined by section 501, I have considered whether I am satisfied there is another reason why the mandatory visa cancellation decision should be revoked as per 501CA(4)(b)(ii).

10. In regards to the revocation question, any supporting submissions and evidence made on behalf of Mr Eteuati can be summarised as follows.

11. He first arrived in Australia on 11 February 2014 when he was 16 years of age and he has lived here since then. He has a daughter aged three years, from his current de facto relationship with his Australian citizen partner. He has a close relationship with this child, and it is in her best interests that he is able to remain in Australia. 

12. His mother, step-father, two brothers, two sisters, four uncles and aunts, 11 cousins and two grandparents reside in Australia. They are eager to assist his rehabilitation. 

13. He is deeply sorry and very embarrassed about the offence he has committed and promises he will change for the better, along with staying away from those friends who have been a bad influence on him. He has not completed or attended any rehabilitative programs but is willing to undertake any programs that will enable and encourage him to improve his lifestyle. I note at this stage, that he had no real opportunity to partake in any rehabilitation programs because of his short period of imprisonment and then thereafter being in detention.

14. He was employed in the construction industry, as well as a small goods factory and warehouse, between 2015 and 2017. He has previously represented Samoa in one of the rugby codes and has played for several clubs while in Australia. He does not have any close family members in New Zealand and will not have anyone to live with or stay with there. I note there was some evidence about two cousins on his mother’s side living in Samoa, but I do not place any weight upon that.

15. I have considered whether to set aside the decision not to revoke the mandatory cancellation decision in accordance with section 501CA and Ministerial Direction No. 65, made under section 499 of the Act. In doing so, I assessed the information set out in the G documents, the exhibits and the oral evidence.

16. Under section 499(2A), I must comply with the Direction when making decisions exercising power under section 501 of the Act.

17. I have noted that paragraph 13(2) of the Direction identifies three primary considerations which I must take in to account when deciding whether to revoke the mandatory cancellation of a visa, being:

    (a)Protection of the Australian community;

    (b)Best interests of minor children in Australia affected by the decision; and

    (c)Expectations of the Australian community.

18. These three primary considerations and other considerations listed in the Direction are discussed below. 

19. I have considered factors that weighed against and in favour of revocation of the delegate’s refusal to revoke the original decision and in making my decision, I am mindful that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia. 

    PROTECTION OF THE AUSTRALIAN COMMUNITY

20. In making my decision, I considered the Government’s commitment to protecting the Australian community from harm as a result of criminal activity by non-citizens. The Australian community expects that non-citizens who wish to remain in Australia should be law abiding. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle, by ensuring that serious offenders remain either in criminal or immigration detention while their immigration status is resolved.

    Nature and seriousness of the conduct

21. In considering the nature and seriousness of Mr Eteuati’s criminal offending, I note that the Direction states that violent offences are to be viewed very seriously. As set out below, Mr Eteuati has been convicted of an offence of violence and an offence involving the threat of violence.

22. On 31 August 2016, Mr Eteuati was convicted in the Local Court of New South Wales of the following offences:

    (i)     Stalk/intimidate intend fear physical etc harm (domestic) – placed on section 9 good behaviour bond for 12 months

    (ii)    Armed w/I commit indictable offence – placed on section 9 good behaviour bond for 12 months

    I note that the above matters were subsequently called up for resentencing because of further offending (see below) and the bonds were extended for a further 18 months.

23. On 17 July 2017, Mr Eteuati was convicted in the Local Court of New South Wales of:

    (i)     Agg B&E dwelling etc in company steal <=$60,000 – 12 months imprisonment, to be served by way of an intensive correction order for 12 months

    (ii)    Enter inclosed land not presc premises w/o lawful excuse – fined $200

    (iii)    Fail to appear in accordance with bail acknowledgment – fined $200

    (iv)   Police pursuit – not stop – drive dangerously – 1^st off – placed on a section 9 good behaviour bond for 24 months and driver’s licence disqualification for 18 months

    (v)    Goods in personal custody suspected being stolen (not m/v) – fined $500

    (vi)   Enter inclosed land not presc premises w/o lawful excuse – fined $300.

24. In the court transcript of 17 July 2017, regarding the police pursuit, defence counsel told the Court that Mr Eteuati initially pulled over when followed by police, but then drove on at the encouragement of others saying ‘Come on let’s go you don’t want to get caught’. His speeding was said to be not egregious in comparison to other similar cases, but was a factor in him crashing. In relation to the break and enter offence, defence counsel stated Mr Eteuati was ‘out on the grog’ when it was suggested by others that he carry out the burglary and Mr Eteuati just went along and took some items while he was there. Some of the stolen items were recovered, including clothing, a watch and perfume. The Magistrate said that the offence of goods in personal custody involved Mr Eteuati being in possession of Converse shoes and socks. I note that the Magistrate described Mr Eteuati’s involvement in the dishonesty offences as ‘fairly minimal’, though he was still convicted of these matters and sentenced as shown above, including a 12 month sentence of imprisonment, albeit that he was permitted to serve that sentence by way of an intensive corrections order.

25. On 2 May 2018, Mr Eteuati was convicted in the Local Court of New South Wales of affray, for which he was sentenced to 12 months imprisonment, with a non-parole period of four months. I note that, in handing down the sentence on 2 May 2018, the Magistrate remarked that Mr Eteuati was lucky that nobody was seriously injured; otherwise he would be in the District Court or Supreme Court. The Magistrate added that the community has been outraged about violence in the community for some time, regardless of whether it involved protecting mates, friends, family or otherwise. I share the Court’s concern over such offending and consider Mr Eteuati’s offending serious, whether or not he actually struck any blows during the incident.

26. The Direction states that sentences imposed by the courts for offences are a further indication of the seriousness of the offending. Dispositions involving incarceration of the offender are the last resort in the sentencing hierarchy. As set out above, Mr Eteuati had received a sentence of imprisonment of 12 months, along with another term of imprisonment for 12 months that was to be served by way of an intensive correction order, reflecting the serious nature of the relevant offences.

27. In summary, I conclude the Mr Eteuati’s violent offending, with the most serious offence being that of affray and an earlier offence involving the threat of violence in a domestic context, constitutes very serious offending and is not in line with community values or expectations. I further find that his record of other offending, which started less than one year after arriving in Australia, while individually less serious than the most recent act of violence, nevertheless amounts to serious offending, along with the danger to the community arising from his driving offences.

    Risk to the Australian community

28. In considering whether the person represents an unacceptable risk of harm, I have had regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

29. In making my assessment regarding the risk to the Australian community, I have had regard, cumulatively, to: a) the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and b) the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending.

30. I note that Mr Eteuati states that he is deeply sorry and very embarrassed about the offences he has committed, and that he wishes he could go back in time and transform himself from a stupid young boy into a mature-minded man. I also note Mr Eteuati promises he will change for the better and keep away from those friends who have been a bad influence upon him. I further note that, although Mr Eteuati has not completed or attended any rehabilitative programs, he is willing to undertake any programs that will enable and encourage him to improve his lifestyle.

31. I note that Mr Eteuati further states his many regrets and guilt and states that he will not do it again. He adds that his motivation arises from intention to be a football player, his need to work and provide for his daughter and family, along with the fact he believes God has plans for him in the near future.  I also note Mr Eteuati is deeply sorry for his actions and disobedient behaviour. He has changed a lot for the better.  

32. I further note Mr Eteuati plans on attending family church, as well as focusing on being a good role model for his daughter and providing her with a good education and a better future.  

33. He has a large and very supportive family base, as well as his football coach, who are determined to ensure he does not reoffend, but I also note the Respondent’s observations that such support has always been there and has not prevented the past offending. However, that factor is balanced by the effect of incarceration, both in jail and in the detention centre for the past year. 

34. I also note that he has only had one counselling session relative to alcohol abuse, but that seems to have had a positive, albeit not complete effect, reducing his alcohol intake before his incarceration from seven or eight cans per day to about four.

35. In handing down the sentence on 2 May 2018, I note that the Magistrate remarked that Mr Eteuati had some prospects of rehabilitation and took in to account his age, along with it being the first time he was actually placed in custody.

36. In assessing the likelihood Mr Eteuati will reoffend, I take into consideration his criminal history, his responsibility and remorse for his offending and his personal insight into his offending; along with his work history, involvement in sporting organisations and family support.

37. I had the opportunity of observing Mr Eteuati whilst giving evidence and it is clear that he is remorseful for his offending and intends to keep out of trouble in the future.  Whether he can be relied upon to fulfill this intention is another matter. 

38. It is clear from his own supporting submission that he has been raised in a good family and has been a dutiful member of his church congregation. However, these factors have not prevented him abusing alcohol, being involved in violence and breaking the law repeatedly.  

39. I accept that he aims to avoid further offending, but it is difficult to be certain that he will not reoffend as he has been in a constrained environment as a result of being placed in a detention centre, denying him the opportunity to demonstrate his ability to reform.  

40. Also, giving consideration to Mr Eteuati’s admission that he has not completed or attended any rehabilitation training courses whilst incarcerated, acknowledging that he has also stated he is willing to undergo such training, the fact remains that he has not done so and if he were to return to the community, he would do that without the benefit of formal training to help him avoid reoffending. That must be balanced by the fact that he was not offered any training whilst in prison for four months and probably would not have had time to undergo any during that period, and such training is not available to those in immigration detention. Once again, his detention has denied him a chance of showing that he is unlikely to reoffend.

41. In conclusion, I am not satisfied there is a significant ongoing likelihood he will reoffend in the future. He will be severely constrained from reoffending, because by now he will realise that any further offending in a similar manner will likely lead to a permanent visa cancellation. Should Mr Eteuati reoffend in a similar manner to past offending, I accept it will be likely to cause psychologic and/or physical harm to a member or members of the Australian community and/or property loss.

42. I have considered that the overall risk he represents must be balanced with what appear to be strong prospects of rehabilitation, noting the Magistrate considered there were such prospects in his comments on passing sentence and the fact that he suspended the majority of the sentence. 

    BEST INTERESTS OF MINOR CHILDREN

43. Acting in conformity with Article 3 of the United Nations Convention on the Rights of the Child, I have treated the best interests of any children under 18 in Australia as a primary consideration.

44. The Direction sets out a number of factors to be considered in assessing the best interests of minor children. These include: the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child; whether there are any other people who fulfil parental roles with the child; any known wishes of the child; and any evidence that the person has abused or neglected the child or that the child has otherwise suffered trauma from the person’s actions.

45. I note that Mr Eteuati has one daughter with his Australian citizen partner, Ms Rosie Vuicakau namely, Illianah Divuravura Vuicakau, aged 3 years.

46. I note Mr Eteuati stated that he dearly cherishes and loves his daughter and she means the world to him, while admitting he has not set a good example for her or the Australian community. The mutual affection between father and daughter was clearly evident whilst his partner was giving evidence and it is quite clear there is a close bond between them, although it was noted by the Respondent that they have been living apart and the partner has not visited him since December last year.

47. I note Mr Eteuati’s daughter currently lives with her mother and maternal grandparents. Prior to being incarcerated, he visited his daughter weekly and assisted in her care arrangements by changing nappies, making her milk and taking her for walks in the park; along with spending time with her at his sister’s and grandparents’ house on weekends. 

48. I note that Mr Eteuati gave evidence his partner had visited him with their daughter during his time in detention and I also note that Mr Eteuati wants to assist his partner by providing for their daughter financially, therefore enabling her to have access to the best education. Evidence was given by his former partner that he supported them financially prior to being incarcerated.

1. I have given consideration to Illianah presently being in the care of her mother and maternal grandparents, along with the fact that her parents were not cohabitating prior to Mr Eteuati’s incarceration due to religious reasons, meaning that her existing care arrangement would not be disturbed by the non-revocation of Mr Eteuati’s visa. However, I recognise that Mr Eteuati has been closely involved in his daughter’s life to date and wishes it to continue once released. It is also important that children, wherever possible, have the love and support of both parents. 

2. In conclusion, I find that it is in the best interests of Mr Eteuati’s daughter that I revoke the original decision to cancel Mr Eteuati’s visa to allow her to continue have a direct personal relationship with her father and for Mr Eteuati to continue providing her with emotional, financial and practical support care. However, that must be balanced with the likelihood of reoffending and the expectations of the Australian community.

   EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

3. I find that the Australian community would expect non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of an offence in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. 

4. Mr Eteuati has breached this trust. He has been convicted of affray in Australia, as well as numerous other offences, including the threat of violence in a domestic context. I note the threat of violence was to another male and not a female. 

5. I note the comments of Deputy President Block in Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336, handed down on 23 December 2003, at paragraph 36, where he said:

   However, the expectations of the Australian community should be taken to be the expectation of the informed, reasonable member of the Australian community, rather than a member of the Australian community who was only prepared to consider the punitive aspects of the power under section 501, as emphasised by Deputy President McMahon in Leha v Minister for Immigration [2000] AATA 1054 at [2.12], there is ‘a general expectation of the community at the Act will be administered fairly and humanely’. 

6. Balancing the serious nature of the offending, I consider that an informed Australian community would not expect Mr Eteuati should not hold a visa. When I talk about the serious nature of the offending, I note that in regards to the affray, the facts before the Magistrate were amended to remove the allegation that Mr Eteuati punched the first victim, whilst on the ground, with two punches. Those punches were, in fact administered by his co-accused.

   OTHER CONSIDERATIONS

7. The Direction identifies five other considerations which I must take in to account, where the considerations are relevant, when deciding whether there is any other reason why the original mandatory cancellation decision should be revoked. The considerations relevant in this case are strength, nature and duration of ties to Australia, and extent of impediments if removed to their home country. There are other considerations, but it was common agreement between the parties that none of those other ones were relevant. 

8. I will now discuss those considerations.

   Strength, nature and duration of ties

9. Mr Eteuati has resided in Australia for almost six years, having arrived as an adolescent of 16 years, during February 2014. Departmental records indicate that Mr Eteuati has not travelled overseas since then. I have given less weight to this consideration, as Mr Eteuati started to offend soon after arriving in Australia. I accept that Mr Eteuati has family and social ties to Australia and that his mother, step-father, two brothers, two sisters, four uncles and aunts, 11 cousins and two grandparents all reside in Australia, in addition to his daughter, as discussed above. 

10. I note that Mr Eteuati has been in a relationship with his partner, Ms Rosie Vuicakau, since 30 August 2014. They first met in high school in 2014 and are still happy together, although they are not residing together and also, will not immediately be residing together upon his release, if he is released, due to them not being married and their differing religions, him being a Jehovah’s Witness and her being a Roman Catholic. 

11. I have given regard to a letter of support from Mr Eteuati’s partner, Ms Vuicakau, which states that Mr Eteuati is a hardworking and goal driven young man who has always shown great dedication to being a role model for his daughter with whom he shares an amazing relationship. Mr Eteuati has been their means of protection, security, transportation and financial support, especially given Ms Vuicakau is presently studying a Certificate III in Aged Care Nursing on a part-time basis. Non-revocation of Mr Eteuati’s visa would greatly affect their financial stability and his future career prospects along with Mr Eteuati missing out on experiencing his daughter’s milestones in life. I accept that their relationship is genuine and continuing. I note that the oral evidence given by Ms Vuicakau in the hearing was consistent with her statements of support.

12. I further note a letter of support from Mr Eteuati’s mother, Ms Sharon Eteuati, which states that Mr Eteuati is a caring young man who has a strong family bond and is very committed to the Jehovah’s Witnesses church. Mr Eteuati is now facing the consequences of making the wrong decisions affecting his life through the influence of his friends. Ms Eteuati loves and misses her son very much and his ‘deportation’ would greatly affect her adversely. A Jehovah’s Witnesses elder is willing to conduct bible study with Mr Eteuati upon his release to assist in his rehabilitation. I note that the oral evidence given by Ms Eteuati in the hearing was consistent with her statements of support.

13. I have given consideration to a letter of support from Mr Eteuati’s grandfather, Mr Faapili Faapiano Eteuati, which states that he is an elder of the Casula Congregation of Jehovah’s Witnesses and he humbly extends his deepest, sincerest apologies for Mr Eteuati’s misconduct and shameful behaviour. Mr Eteuati’s grandfather stated that, while his grandson grew up without his father, Mr Eteuati attended Tuesday evening and Sunday church congregational meetings along with being an enthusiastic preacher and participating in many youth activities. Mr Eteuati stopped attending church after making new friends outside of church who were a bad influence on him. Mr Eteuati’s grandfather believes his grandson can change for the better and he is prepared to take Mr Eteuati under his care. I note that the oral evidence given by Mr Eteuati’s grandfather in the hearing was consistent with his statement of support.

14. I accept that Mr Eteuati has strong relationships with his family members and accordingly strong links to Australia through them.

15. I note Mr Eteuati reached Year 11 at high school and he was employed in the construction industry as well as a smallgoods factory and warehouse between 2015 and 2017.

16. I further note Mr Eteuati has previously represented Samoa in one of the rugby codes, along with playing for several clubs whilst in Australia. I have noted a letter of support from Mr Youssef Cheikho, which stated he has known Mr Eteuati for around three years at the time of writing the letter. Being a coach himself, he considered Mr Eteuati to be an outstanding rugby league player, with tremendous abilities.

17. I accept Mr Eteuati has strong community links to Australia. I have considered the effect of non-revocation on Mr Eteuati’s immediate family members in Australia and accept that those persons would experience emotional, practical and financial hardship. I have also taken in to account, the contribution that Mr Eteuati has made to the community through his previous limited employment and involvement with local sporting organisations. 

    Extent of impediments if removed to their home country

18. I have had regard to the impediments that Mr Eteuati will face if removed from Australia to his home country in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of New Zealand.

19. I note Mr Eteuati states he does not have any close family members in New Zealand and will not have anyone to live or stay with. I also note that Mr Eteuati emphasises that separation from his daughter would be a very heavy burden on him.

20. Mr Eteuati is now aged 21. I find that he would experience ongoing emotional hardship upon removal, particularly psychological stress arising from separation from his partner and his daughter in Australia. There is no evidence to suggest that he has any physical health issues that would limit his work capacity in re-establishing himself in New Zealand. I have taken into account that Mr Eteuati is unlikely to suffer any language or cultural barriers in New Zealand, given the fact that he spent most of his formative years there. Furthermore, I find that Mr Eteuati would be eligible for medical treatment, accommodation and financial assistance in New Zealand equivalent to that generally available to other New Zealand citizens in the same position.

    CONCLUSION

21. I have considered all relevant matters, including Ministerial Direction No. 65 under section 499 of the Act, an assessment of the representation received in relation to the invitation for the purposes of section 501CA(4), an assessment of the oral evidence given in this hearing, an assessment against the character test as defined by section 501(6) of the Act for the purpose of section 501CA(4)(b)(i), an assessment of whether there is another reason why the mandatory visa cancellation decision should be revoked for the purpose of section 501CA(4)(b)(ii) and all other evidence available, including evidence provided at this hearing and the evidence contained in all the exhibits, including the G documents.

22. As referred to above, in coming to a decision, I was not satisfied that Mr Eteuati passes the character test, as defined in section 501 of the Act. In considering whether I was satisfied there is another reason why the decision to cancel Mr Eteuati’s visa should be revoked, I gave weight to the serious nature of the crime committed by Mr Eteuati, that being the affray, which was of a violent nature, but do so bearing in mind the Magistrate’s comments and the suspension of the majority of his sentence. I also find that Mr Eteuati should expect to forfeit his right to remain in Australia.

23. I also find the Australian community could be exposed to harm should Mr Eteuati reoffend in a similar fashion, but this finding is balanced by the comments in Waits’ case, referred to above.  Given that I am of the view that the Australian community would not expect Mr Eteuati’s visa would remain cancelled if they were fully informed of the evidence presented at this hearing, I have considered the best interests of Mr Eteuati’s minor daughter as a primary consideration and found her best interests would be served by the revocation of the mandatory visa cancellation decision.

24. In addition, I consider the ties that Mr Eteuati has formed by reason of his residence in Australia over almost six years, the positive contribution he has made to the Australian community through his previous limited employment and his involvement in local sporting organisations, along with the consequence of non-revocation of the original decision for other family members.

25. In reaching my decision, I conclude that Mr Eteuati does not represent an unacceptable risk of harm to the Australian community and the protection of the Australian community is not outweighed by the best interests of his daughter as a primary consideration and other countervailing considerations I have described above. These include his length of residence and bonds, previous employment and involvement in local sporting organisations and the hardship Mr Eteuati’s family and social networks will endure in the event the delegate’s decision is not revoked. 

26. Having given full consideration to all of these matters, I am satisfied there is another reason why the original decision to cancel Mr Eteuati’s Special Category (Temporary) (Class TY) (subclass 444) visa should be revoked, as required by section 501CA(4)(b)(ii).

27. As I am satisfied there is another reason why the original decision should be revoked, my power to revoke is enlivened and the decision to cancel Mr Eteuati’s visa is revoked.  

28. Accordingly, for the reasons given orally at the conclusion of the hearing in this matter, the Tribunal decides the reviewable decision made on 12 December 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa, is set aside.

29. In substitution, the decision to cancel the applicant’s Special Category (Temporary) (Class TY) (subclass 444) visa, made on 21 May 2018, is revoked.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President A G Melick AO SC

..............................[sgd]..........................................

Associate

Dated: 28 March 2019

Dates of hearing:	25, 26 and 27 February 2019
Solicitors for the Applicant:	Mr F Nikjoo Nikjoo Lawyers
Solicitors for the Respondent:	Ms H Dejean Australian Government Solicitor