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

[2022] AATA 3527

Haidas and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3527 (19 September 2022)

Division:GENERAL DIVISION

File Number(s):      2022/5452

Re:Zakariya Haidas

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:19 September 2022

Date of written reasons:        19 October 2022

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

MIGRATION – mandatory cancellation of visa – whether another reason for cancellation to be revoked – driving offences, affray, and armed robbery - violent offending but applicant not fundamentally antisocial – real interest in remaining in Australia - decision set aside and cancellation decision revoked

Legislation

Migration Act 1958 (Cth)

Cases

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

19 October 2022

1. After I delivered my decision with oral reasons, I received a request for written reasons.  These are the reasons I read out to the parties, with minor amendments.

2. This is an application by Mr Zakariya Haidas seeking a review of a decision of the respondent’s delegate dated 27 June 2022. By this decision, the delegate declined to revoke the cancellation of Mr Haidas’ visa. The visa had earlier been cancelled mandatorily under section 501 of the Migration Act 1958 (Cth) (“the Act”). The cancellation occurred because Mr Haidas had been convicted of armed robbery and sentenced to a lengthy term of imprisonment exceeding 12 months, part of which he was required to serve on a full-time basis in gaol: see section 501(3A). I shall describe the offending in due course.

3. Mr Haidas made a timely application to have the cancellation decision reviewed and revoked. The delegate who was tasked with that internal review had two questions to address: see section 501CA(4)(b). The first was whether Mr Haidas passed the so-called “character test” as defined in section 501(6) of the Act: see section 501CA(4)(b)(i). If the answer to that question was “no”, the delegate had to address a second question; namely, whether there was “another reason” for the cancellation decision to be revoked: see section 501CA(4)(b)(ii). In addressing this latter question, the delegate had to apply Direction 90 issued under section 499 of the Act[1].

   [1] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

4. There was no dispute before me that the first question the delegate had to address was properly answered. Mr Haidas had been sentenced to imprisonment for a term exceeding 12 months, and under the applicable statutory definition, he did not pass the “character test”: see section 501(6)(a) and (7)(c). The delegate’s decision was clearly correct in this regard.

5. The controversial question before me involved the second question the delegate was required to address; namely, whether there was “another reason” for the cancellation decision to be revoked.

   TRIBUNAL’S TASK

6. In matters like this, the Tribunal proceeds de novo, to use the Latin expression. This means that I hear oral evidence and submissions, receive documents into evidence, draw inferences of fact, and make my own final conclusions of fact.  I do not merely review the delegate’s decision for error. This implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasoning if that is the correct or preferable decision on the evidence adduced 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. At the hearing before me, Ms Mamarot appeared for Mr Haidas; Ms Prasad, for the respondent.

   STATEMENT OF CONCLUSION 

7. I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Haidas’ visa be revoked.  I now turn to set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

8. Mr Haidas was born in New Zealand in 1999 and is a citizen of that country. He emigrated to Australia with his family when he was five years old. He has six siblings.  He was 23 at the time of the hearing before me. Mr Haidas’ offence of armed robbery[2] led to a significant term of imprisonment, and this led in turn to the cancellation of his visa on 19 May 2020; i.e., when he was 20 years of age.

9. Mr Haidas prepared a statutory declaration that was in evidence before me: see Exhibit A1, pp1ff. Mr Haidas records in this declaration that he had a happy and good childhood in Australia.  His father and mother remain married. He describes his father as a “strict disciplinarian” (at [5]), but Mr Haidas does not suggest that there was anything wrong in that approach from his perspective. He completed all of his schooling in Australia. He left school halfway through Year 11 and then worked as a table-polisher for six months. He liked the work, but, as he says in his declaration, it was not the right job because he had to work in confined spaces. He then worked as an air-conditioning apprentice for three years before his incarceration. The three years were split between two companies, as I understand his statement, the first being “Airspec” and the second “Wall-to-Wall Airconditioning”.

   [2] Formally called “robbery armed with an offensive weapon” in the criminal record: see Exhibit R1, p.29.

10.  This background shows no particularly remarkable features in Mr Haidas’ life.

11.  The declaration also refers to Mr Haidas’ former employer being willing to re-employ him if he is permitted to remain in Australia.  That evidence was confirmed explicitly by a written statement from the employer (see Exhibit A1, p 36) and his oral evidence at the hearing.

Criminal Record

12.  Mr Haidas’ criminal record was before me: see Exhibit R1, pp 28 to 29. From 27 August 2018 to 21 April 2020, there are a number of offences that came before the Burwood Local Court and the Liverpool Local Court. It is clear from these offences that Mr Haidas had developed a degree of defiance towards the law. The offences are serious enough for someone of Mr Haidas’ young age. The first offence that is listed involved Mr Haidas driving a motor vehicle while his licence was suspended.  He was given a bond on that occasion for 12 months. Approximately six months later, he was fined $800 for driving an unregistered vehicle. On the same day he was fined a further $800 for not stopping at a red light.  That was an important offence because his failure to stop resulted in a collision, which is a serious matter.

13.  Just under three months later, Mr Haidas was found guilty of driving a motor vehicle while his licence was suspended, and he was fined $600. Five months later, on 30 September 2019, he was found guilty of driving a motor vehicle during a disqualification period and was fined $800. Two and a half months later, he was found guilty of driving a motor vehicle during a disqualification period and was fined $1500. On 21 April 2020, some four and a half months later, he drove a motor vehicle during a disqualification period yet again, and on this occasion he received a community correction order of 15 months. As I say, these offences are serious in that they show a persistent disregard for the law . I do bear in mind, however, that Mr Haidas was still young at this stage, but I also bear in mind that one offence had resulted in a collision[3].

[3] I further bear in mind that in 2019 Mr Haidas falsely indicated on a passenger-arrival card that he had no convictions.

14.  On 27 May 2020, Mr Haidas was found guilty of the offence of “affray”.  This offence involved a fight with other youths at a Westfield shopping centre.  It involved significant violence including punching of victims. Mr Haidas sought to explain the event as an occasion where he and his brother became mixed up with aggressive youths. But it is clear that this was not a case of self-defence, and Mr Haidas was convicted of an offence involving some violence.  He received a fine of $500 and a conditional release order with a 12-month period attached.  At this stage, I note that Mr Haidas’ offending had now extended to more serious physical altercations in the community.

15.  Just before he was sentenced on the affray offence, Mr Haidas committed a very serious offence. This took place on 19 May 2020.  I had the sentencing remarks of the District Court of New South Wales before me: see Exhibit R1 at pp 32ff.   I accept the remarks for the purposes of my review. Mr Haidas was in the company of a person who was younger than he was, his co-offender.  In fact, the co-offender was still a minor at the time.  Mr Haidas and his co-offender entered a convenience store at 4:45 pm. I proceed on the basis that Mr Haidas was the leader of the duo, and, indeed, it would appear that Mr Haidas directed his co-offender in the execution of the robbery.

16.  Mr Haidas was armed with a small tomahawk or axe, while his co-offender carried a baseball bat.  The victim of the robbery was a lone female shopkeeper.  Mr Haidas directed his axe at her, which, in light of the Court’s finding that the offence involved no actual physical violence, I take to be a form of deliberate brandishing of the tomahawk towards the victim so as to intimidate her.

17.  The Court regarded the offending as slightly below the middle range of objective seriousness for this type of offence. It noted that he had been on conditional liberty at the time of the offending, which was an aggravated feature of the offending.  The Court recorded that Mr Haidas was 20 at the time of the offence and was still relatively young. He was sentenced on the basis that he had a limited criminal history mostly consisting of driving-related offences although about three months earlier, he had committed the offence of affray to which I have referred.

18.  The Court viewed the use of a tomahawk and baseball bat as a serious matter.  These weapons were clearly capable of inflicting serious injury, or death, according to the sentencing Court and were capable of terrorising the victim. I note that Mr Haidas actually brandished the weapon towards the victim. The Court referred also to the fact that there was a degree of planning and preparation as the offenders had armed themselves and masked their faces. The Court had no doubt that the victim felt very seriously threatened by the offenders. The Court held that she was in a vulnerable position as she was working alone.

19.  The Court did note that Mr Haidas pleaded guilty at the earliest opportunity.   The Court also referred to the fact that Mr Haidas’ parents had left Australia some three years earlier.  The Court accepted that Mr Haidas was, in the lead-up to the offence, under some degree of financial and other stress given his family responsibilities (given his parents’ absence) and his inability to work arising from the pandemic. Mr Haidas did not defend the accuracy of the Court’s reference to his being unable to work because of the pandemic. I find his hours of work were not substantially reduced during the pandemic although other family members’ might have been.  The Court rejected the suggestion made by a psychologist at the time that Mr Haidas was suffering from a mental-health condition before and during the offending. The Court found that the offending was committed partly for the thrill of the experience and was affected by the disinhibiting effects of regular cannabis misuse.  Drug misuse had certainly been a feature of Mr Haidas’ life.

20. The Court accepted there was some genuine remorse in Mr Haidas’ case although it also referred to certain remarks made by Mr Haidas to his co-offender prior to arrest to the effect that he wished he had harmed his victim very severely. I note that the Court found that the offence was “somewhat out of character” for Mr Haidas and “arose largely from his immaturity, his use of cannabis, and his having too much time on his hands”: see Exhibit R1 at p 39 [37]. He was accepted to be a person of generally prosocial habits with a good work ethic. He impressed the Court as a young man who was “fairly intelligent” and “thoughtful”: see Exhibit R1, p 39 [38]. The Court noted that while in custody Mr Haidas had engaged in employment and self-improvement courses and was regarded as a co-operative and good inmate. The court found expressly as follows at [38]:

I believe that with further maturity and the experience of this current custody behind him he is someone who is likely, if he puts his mind to it, to lead a useful life and avoid reoffending in the future. His prospects of rehabilitation are reasonably favourable.

21.  A twenty-five percent discount was awarded given the early guilty plea. The reduced head sentence was three years four months expiring on 22 October 2023 with a non-parole period of 20 months expiring on 22 February 2022. 

REASONS

22.  I now come to apply Direction 90. In the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 I set out certain prefatory observations in relation to the Direction at paragraphs [32]ff. I customarily set these paragraphs out, and I do so again here:

32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

33.  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

34.  First, remaining in Australia is a privilege conferred on noncitizens 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, noncitizens 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 where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen 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 noncitizens 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. Fifthly, the nature of the noncitizen’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 insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

35.  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

36.  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 section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.

23.  I must have regard to the protection of the Australian community from criminal or other serious conduct as a primary consideration.  I bear in mind what appears in paragraph 8.1 (1) without setting it out.

24.  Subparagraph (2) requires me to give consideration to the nature and seriousness of Mr Haidas’ conduct to date and the risks to the Australian community should he commit further offences or engage in other serious conduct.  In addressing the nature and seriousness of the conduct, I must have regard to a number of matters listed in paragraphs (a) to (g) of subparagraph (1) of paragraph 8.1.1.

25.  It is convenient to group the driving offences.  I regard these in their totality because of their number. They do show a persistently defiant attitude towards the law. However, none of these offences involved dangerous driving with one exception.  In  the main, they involved driving during a licence-suspension period.  The one exception involved Mr Haidas not stopping at a red light, a failure that led, as I said, to a vehicle collision.  It is, however, a one-off according to the record.

26.  The offences of affray and armed robbery are far more serious, self-evidently, particularly the latter. In my opinion, it is right to concentrate on these although the totality of Mr Haidas’ offending must be borne in mind.  Both offences must be viewed very seriously because of paragraph (a). Both involved violent crimes (even if the violence was merely threatened in the case of the armed robbery).  In addition, the crime of armed robbery was against a woman, who was alone at the time.

27.  I must have regard to the sentence imposed in each case, although, given that a crime of violence against a woman was involved in the armed robbery, I am strictly required to regard it as very serious irrespective of the sentence imposed.  Nevertheless, the sentence imposed was a long one and it was custodial, and these factors mark out the offending as very serious.

28.  There have been two cases of serious violence now and so there is a frequency in the offending and this is reinforced by other prior offending although it is not of the same type.  There is clearly a trend of increasing seriousness in my view. I must also have regard to the cumulative effect of repeated offending and I do so.

29.  I was also asked by the respondent to have regard to the fact that Mr Haidas has provided false and misleading information to the Department. This was said to consist of a representation made by Mr Haidas that all of his family “live” in Australia, including his parents, when they had been physically absent from Australia for some three years.  Mr Haidas’ evidence to me was that his parents do normally reside here but have been stranded in Tonga (the birthplace of his mother) and unable to return to Australia because of movement restrictions. He disputed that there was any inaccuracy in the information given to the Department.

30.  The word “live” may be understood in different ways.  In context, I believe Mr Haidas meant to suggest that his parents, along with other family members, normally reside‒ that is, have their permanent residence‒ in Australia. I am not satisfied that Mr Haidas’ parents no longer reside in Australia.  Evidence was given by Mr Haidas’ sister and in other statements that confirms their current presence in Tonga, and I accept that evidence. There is evidence that suggests Mr Haidas has indicated that his parents were in New Zealand; but I am not satisfied that that is in fact the case. In any event, I do not regard the question of whether Mr Haidas misled the Department as an issue that would tip the balance against him if I decided that he had provided false information to the Department.  It seems to me that the case turns on other factors.

31.  All in all, I regard the nature and seriousness of the violent offences as very serious indeed as mandated by the Direction.

32.  I must have regard to the risks to the Australian community should Mr Haidas re-engage in criminal activity. Without recapitulating it, I bear in mind what appears in subparagraph (1) of paragraph 8.1.2.

33.  So far as the driving offences are concerned, I would note that some driving offences can encompass danger to the Australian community (such as failing to stop at a red light) but driving a vehicle while under suspension is more in the nature of a defiant offence, rather than one where the nature of the driving itself encompasses danger to the community.

34.  In applying subparagraph (2) to the two offences of violence, I must have regard, “cumulatively”, to the nature of the harm to individuals or the Australian community should Mr Haidas engage in further criminal or other serious conduct and the likelihood of his so doing.

35.  So far as the first issue is concerned, I am required to assume that Mr Haidas engages in further criminal or other serious conduct of the type of which he has been found guilty. Clearly enough, any repetition of a physical altercation involving punching could result in significant injury to a member of the Australian public.

36.  Any repetition of an armed robbery would be extremely serious indeed. It is true that there was no actual physical violence inflicted on the victim of the armed robbery; but I proceed on the basis that an armed robbery is inherently a volatile situation in which a weapon can come to be used even though the offender may not have originally intended to use it.  Accordingly, armed robbery must be regarded as an extremely serious offence and I take that into account.

37.  I must take into account the likelihood of the non-citizen engaging in further criminal or other serious conduct. I must take into account, amongst other things, information and evidence concerning the risk of Mr Haidas reoffending.  I have had regard to the evidence given by Dr Emily Kwok and her expert report which was in evidence before me: see Exhibit A1 at pp 12ff.  I accept her report and her oral evidence as measured and balanced.  I accept her conclusion that Mr Haidas presents a low risk of engaging in further criminal conduct: see paragraphs [35]-[36] of her report. I accept that he would benefit from further counselling in the community as well as psychological therapy sessions to build coping strategies for stress. 

38.  I believe that this conclusion is consistent with that of the sentencing Court to which I have had regard. I, too, have formed the view that Mr Haidas is a “fairly intelligent” and “thoughtful” young person who is likely, if he puts his mind to it, to “lead a useful life”. I also believe, however, that any further involvement in drugs or poor company could well lead to further antisocial offending.

39.  I accept also that Mr Haidas has now had, at a young age, his first experience of a lengthy period of imprisonment followed by immigration detention with a view to his deportation to New Zealand.  I believe that these experiences will have had a positive effect.  They have offered rehabilitation and will offer a very strong deterrent in the future. Even if I assume that his parents now reside in New Zealand, I believe that Mr Haidas is genuinely committed to building a life in Australia with a return to employment and resuming meaningful relationships with his siblings and girlfriend/partner.  But quite apart from that, gaol is itself a very significant deterrent to those young offenders who are sensible and see that further offending will only lead to a wasted life. Having heard Mr Haidas give evidence, I believe that he falls into this category. Nevertheless, I note that this is a matter I am to have regard to “cumulatively”, and I have already indicated that violent offending is to be taken very seriously under the Direction.

40.  I must have regard to any family violence committed by Mr Haidas. This is not an issue in this case.

41.  I am to have regard also to the best interests of minor children in Australia.  This factor does weigh in Mr Haidas favour, but in respect of one nephew only in my opinion.  I largely, but not completely, agree with what is put in the respondent’s Statement of Facts Issues and Contentions at [37]ff, without setting it out.  There appears to be only one nephew who would have any positive memory of Mr Haidas prior to his incarceration in 2020, and it has now been some two years since he has been absent from their lives.  I accept that the relationship is not a parent-child one.  However, that one nephew has provided a letter (see Exhibit A1, p 41) and I accept that he values the relationship: Mr Haidas does play a positive role in the nephew’s life.

42.  I must have regard to the expectations of the Australian community. I accept that these are to be found in the Direction itself and I am not to assess them for myself. I acknowledge what appears in subparagraph (1) of paragraph 8.4.   I accept that this case does involve the commission of a serious crime against a woman in that the armed robbery was an extremely intimidating event for the lone female shopkeeper at the convenience store.  I further accept that this is the sort of crime (cf paragraph (c) of paragraph 8.4(2)) where the Australian community expects the Government to cancel an offender’s visa.

43.  These expectations are to apply, I acknowledge, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community: see subparagraph (3).  All in all the “community-expectations” consideration counts against Mr Haidas.

44.  I am to have regard to “other” considerations. These are listed non-exhaustively in paragraph 9. Non-refoulement obligations do not arise in this case.  So far as the “extent of impediments if removed” consideration is concerned, New Zealand offers a comparable standard of living. But in my opinion Mr Haidas would face initial difficulties. He would be bound to disclose to any prospective employer, if asked to do so, his Australian criminal record.  That record may well deter an employer.  I agree with Dr Kwok that the absence of immediate employment and the cessation of his relationship with his girlfriend, which is a stabilising influence at the present time, do pose particular problems for Mr Haidas. I agree that if he were deported to New Zealand, he would be involved in a degree of initial hardship and loneliness at a time when he does need to focus on counselling and further rehabilitation to avoid any relapse into substance abuse. It would be, however, a temporary difficulty only. 

45.  I should say that I do not agree unqualifiedly with Dr Kwok’s observation that Mr Haidas has very limited education.  Mr Haidas has had significant experience installing in air-conditioners.  But there is no doubt that he has a better chance in Australia of immediately re-establishing himself because he has the chance of returning to work with his former employer who is still prepared to offer him work upon his release.

46.  I must also have regard to Mr Haidas’ links to the Australian community. I would note here that Mr Haidas has lived in Australia since the age of five, that is the vast majority of his life.  Indeed, he could only have a very limited recollection of life in New Zealand. I accept that Mr Haidas’ siblings wish him to stay in Australia, and that is a matter I should take into account, although New Zealand is relatively close to Australia and his return there would not mean the end of all one-on-one contact.  But it will be a very different life for them as a family. I believe that his partner would also miss him, although the relationship has yet to mature, it would seem, to a particularly serious one, although I accept that she says she loves him.

47.  Mr Haidas himself has a real interest in remaining in Australia and pursuing the relationships he has both with family and with his current partner. I take this into account.

48.  I would also give Mr Haidas credit in respect of his involvement in a program called “Youth off the Streets” which is referred to in the letter of support provided by Narjis Saleh (see Exhibit A1, p 43).

49.  I should add that I have no information concerning the impact of my decision on victims, and I leave it to one side is a neutral factor.

WEIGHING THE CONSIDERATIONS

50.  I now come to weighing the various considerations. Generally speaking, I acknowledge that primary considerations should be accorded more weight than the “other” considerations: see paragraph 7(2) of the Direction.  But it is equally true that I must consider the individual circumstances of the application before me, and other considerations can prevail over even strong primary considerations in an appropriate case.

51.  I am particularly conscious of the violent offence that Mr Haidas has committed most recently. It was a very serious offence. The possession and brandishing of a tomahawk are self-evidently very serious matters. The victim was vulnerable. Nevertheless, it is important, I believe, to bear in mind that the risk of re-offending in this case is low according to the expert evidence, which I have found to be reliable, and that the prospects of rehabilitation have been judged by the sentencing Court as “reasonably favourable”. The offending was also held by the Court to be somewhat out of character, and I agree with that assessment. I note further the undoubted factors of misuse of drugs and youth as contributors.  These have led Mr Haidas to commit what was for him an unusual crime at that stage of his life. I believe that gaol and immigration detention have had a strongly rehabilitative effect and will offer a very strong deterrent in the future.  As I have said, I believe that his risk of reoffending is low as at the date of my decision.  I also believe that he is more likely to rehabilitate himself completely in Australia where he has an immediate offer of work from his employer. I agree with the sentencing Court’s observation that Mr Haidas has been a person of generally prosocial habits with a good work ethic. There is in this case, I think, good reason to believe that Mr Haidas will engage positively with the community on his release. I believe him when he says that this is what he wishes to do, and, like the sentencing Court, I have formed the view that Mr Haidas is a person of some intelligence and thoughtfulness.  He has in my opinion reflected on his behaviour well, although I do not doubt that Dr Kwok is correct in noting that his poor decisions in the past in relation to both drugs and inappropriate social contacts will mean that he should engage with appropriate support services in the community.

52.  This is a rather unusual case. The offending is certainly very serious but there is not an entrenched pattern of serious highly antisocial offending by an older person in relation to whom there are significant concerns about the likelihood of future offending. I am particularly conscious, however, of the need to protect the Australian community against even small risks of such violence.  A low risk does not mean “zero” risk, and if the risk profile had been higher or the offending history longer, I may well have affirmed the decision under review. But that is not the case, and the correct or preferable decision in my opinion is to find that the considerations, when weighed together, favour on balance revocation of the cancellation decision.

DECISION

53.  Returning to the statutory test in section 501CA(4)(b)(ii), I find that there is “another reason” for the cancellation decision to be revoked. I shall set aside the decision under review and substitute a decision that the cancellation of Mr Haidas’ visa be revoked.

……………[sgnd]……………….

Associate

Dated: 19 October 2022

Dates of hearing:	6 September 2022
Advocate for the Applicant:	Marta Mamarot South West Migration & Legal Services
Advocate for the Respondent:	Subasha Prasad Minter Ellison