LVWS and Minister for Home Affairs (Migration)

[2019] AATA 5546

LVWS and Minister for Home Affairs (Migration) [2019] AATA 5546 (20 December 2019)

Division:GENERAL DIVISION

File Number(s):      2019/6432

Re:LVWS  

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr N A Manetta, Senior Member

Date:20 December 2019

Place:Brisbane

The Tribunal sets aside the decision to cancel the Applicant’s visa and substitutes a decision that the visa not be cancelled under s 501(2) of the Migration Act 1958 (Cth).

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

Dr N A Manetta, Senior Member

CATCHWORDS

MIGRATION – cancellation of applicant’s visa – where applicant has a substantial criminal record – whether the discretion to cancel the applicant’s visa should be exercised -- where applicant’s offending committed against an infant – primary considerations – other considerations – strength, nature and duration of ties – extent of impediments if removed -

decision to cancel applicant’s visa set aside and substituted.

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185 (24 October 2019)

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018

REASONS FOR DECISION

Dr N A Manetta, Senior Member

20 December 2019

1. This is an application by LVWS (to whom I shall refer as “Mr L”) seeking a review of a decision of the Respondent’s delegate that Mr L’s visa,[1] permitting him to remain in Australia, should be cancelled under s 501 of the Migration Act 1958 (“the Act”). The cancellation obliges Mr L to leave Australia.  Mr L is a citizen of New Zealand, and the evidence before me suggests that his only option is to return to that country.  At the hearing before me, Mr L was represented by Mr Duncan; the Respondent, by Mr Dube.

   [1] Identified as a Class TY Subclass 444 Special category (Temporary) visa.

2. Hearing the matter afresh, I must decide whether the correct or preferable decision on the evidence adduced before me is to affirm or set aside the decision under review. I need not identify any error in the decision-maker’s decision before setting it aside.  Equally, I may affirm the decision under review, notwithstanding an error in it, if that is the correct or preferable result.  That is, the hearing before me is a de novo hearing on the merits.

   STATEMENT OF CONCLUSION

3. I have decided to set aside the Respondent’s delegate’s decision. I set out below the salient facts and my reasons for this conclusion.

   SALIENT FACTS

4. The Tribunal heard evidence from Mr L and Mr L’s mother, to whom I shall refer as “Ms W”. I found both to be witnesses of truth who endeavoured to give their evidence honestly.

5. Mr L’s evidence was to the following effect. He was born in New Zealand and came to Australia in November 2001, aged 14. He emigrated at that time with his mother and siblings.   The family settled in Victoria, where Mr L attended high school. After leaving school, he began a course at a TAFE College of Applied Learning, which he described as offering a more practical education better suited to his talents. During the school holidays in mid-2004, he found work in a timber yard as a store attendant. In late 2004 he went back to TAFE and undertook a Certificate in Work Education.

6. Mr L then decided to pursue a trades career. He first became a trolley-collector at a shopping centre.  He held this position for approximately one and a half years, from April 2005 to August 2006. In August 2006 he moved to the Gold Coast and was a trolley-collector there for some time, but eventually became a baker’s assistant with Goodman Fielder.

7. At Goodman Fielder, Mr L undertook shift work. On Mondays, Tuesdays, and Wednesdays, he would commence work at 9:30pm and finish up at 5:00am (or at 4:00am on Tuesdays). On Thursday he would begin work at 3:00pm for a 10-hour shift but this could extend to a 12 or 14-hour shift depending on demand. On Friday he worked from 3:00pm to 11:30pm but this shift could also be longer. Mr L gave evidence that these were the hours he was generally working at the time of his daughter’s birth in June 2013.  I accept that evidence.

8. At the time of the birth, Mr L took two weeks’ leave but then returned to working shifts as earlier described. He was living in a house on the Gold Coast at the time. He owned it, but it was subject to a mortgage.

9. Mr L gave evidence, which I accept, that he was very happy when his daughter was born. He asked for a review of his roster to accommodate his new responsibilities as a first-time father, but his supervisor rejected the request, and his partner was concerned in any event about the loss of the 20-percent shift-loading he was earning.

10. The evidence suggests that the couple did not cope well with domestic life once the baby had arrived. Ms W gave evidence, which I accept, that she was not invited to the home after the baby’s birth, which was odd. When she did eventually enter the home after the events I am about to describe, she found it in a chaotic state. It was clear to her that her son and his partner had not been managing their domestic life well.

    Offending

11. Mr L gave evidence, which I accept, that he had the weekend off around 11 August 2013.  At about five o’clock in the morning on that day, he gave the infant, who was then nine-weeks old, a bottle and tried to settle her.  The baby stirred again at about 7:30am, and, when she would not settle, and after she had defecated and urinated on him, Mr L took what he described as a “brain-snap” decision and shook her.

12. He did not disclose his behaviour to his partner.  When the baby was found to be limp and otherwise unwell later that day, the couple took her to hospital. She was given a CT-scan.  Even at that stage, Mr L did not disclose to medical staff what he had done. The scan disclosed an intracranial haemorrhage. Treatment was then administered.

13. Shortly after the event, Mr L told Ms W what had happened.  She advised him to disclose his offending, and Mr L then confessed to police.

14. The violence Mr L had shown towards his daughter ended his relationship with his partner. She returned to the house to pack her things when he was not there and left.

15. Mr L was charged in due course with causing grievous bodily harm to the baby. I understand from the evidence that the case had attracted adverse media attention. Mr L began to take a number of days off work due to stress.  He regretted what he had done and felt shame and anxiety about his own future. He began at this point to abuse substances including marijuana and prescription drugs and to drink heavily. His mortgage fell into arrears.  The house was repossessed in due course.

    Sentencing

16. Mr L was sentenced on 19 March 2015. Her Honour Judge Dick indicated that she had found the case a very difficult one.[2]  She noted that the offence was very serious in that it involved the infliction of grievous bodily harm upon a very small baby.[3]  Her Honour noted that the baby appeared to have made a good recovery. It was not possible to say that definitively, but, equally, it was not possible to say that the baby had been left with permanent injuries. The Judge noted the possibility of some developmental drawbacks. Whether this possibility eventuated would have to be determined when the child attended school.[4]

    [2] Exhibit 1, S 501G documents at 42.

    [3] Ibid.

    [4] Ibid, at 43.

17. The Judge noted the baby’s retinal haemorrhages (which could have led to complete blindness) and intracranial haemorrhaging. The Judge noted also that the baby had suffered further physical injuries consisting of bruising and fractures.  She was satisfied that all the injuries occurred in the same incident.[5] The Judge then said as follows:

    “I can say this categorically, for most people that would lead to a sentence of imprisonment of four years without any question, with a recognition of the plea of guilty. This is more complicated. You had a long history since you were a child of contact with mental health authorities and being assessed. Your mother is able to describe you as a child having typical features of autism, tip-toe walking, rocking back and forth, sensitivity to touch and noise and also exhibiting repetitive type behaviours and obsessions with certain objects.”[6]

    [5] Ibid.

    [6] Ibid.

18. At a later point,[7] the Judge withdrew her remark that an appropriate sentence for most people would be four years, but it is clear that she thought the offending was serious.

    [7] Ibid at 46.

19. The Judge observed that, unfortunately, Mr L had been wrongly diagnosed as a child with attention deficit hyperactivity disorder.[8] It was later discovered that Mr L had, in fact, an autism-spectrum disorder.[9] His deficits were described by the Judge, quoting from an expert report before her, as “lifelong and sufficiently severe to affect his personal, social and occupational functioning”.[10]  

    [8] Ibid at 43.

    [9] Ibid at 43-44.

    [10] Ibid at 44.

20. I note that Ms W gave evidence that the failure to diagnose Mr L’s autism-spectrum disorder was due in her view to the practice in New Zealand at the time of diagnosing a child as either autistic or not.  There was apparently no practice of a “spectrum” diagnosis. 

21. The Judge quoted from Professor Bitzka, who was of the view that Mr L had some severe intellectual problems although he was average in other areas of cognitive functioning.[11] Her conclusion, again based on an expert report before her, was as follows:

    “ ‘The effect of the autism means that you have decreased stress tolerance, impaired impulse control, low frustration tolerance is well as deficits in  judgement and moral reasoning. Due to those characteristics you would be expected to become more easily emotionally overwhelmed than an average person.’ ”[12]

    [11] Ibid.

    [12] Ibid.

22. The Judge then referred to the shift-work in which Mr L had been engaged at the time and the associated sleep deprivation. This, she said, “leads up to a picture we see now”.[13]

    [13] Ibid.

23. Turning to the appropriate sentencing considerations, the Judge referred to the fact that the most important principle was usually general deterrence. Her Honour took into account, however, that Mr L’s moral culpability was reduced given his disorder.  General deterrence was, therefore, of more limited relevance to Mr L’s sentencing.[14]

    [14] Ibid at 45-46.

24. Her Honour then proceeded to quote from a case called Collins. Her Honour believed that an observation made in that case was applicable to Mr L. That observation was that it would be “disproportionate to the respondent’s criminality if he were to be sentenced as the person with sole responsibility for his inadequacies as the father of the infant”.[15]

    [15] Ibid at 46.

25. The Judge then proceeded to quote from the same case as follows:

    “ ‘Whatever might be the position in the case where an accused, even a young accused, has a history of violence or threatened violence towards his partner or child and where he commits the offence in the course of a dispute with his partner, the material before the sentencing judge disclosed no basis for treating this as other than a momentary aberration by someone not yet himself an adult in a situation beyond his experience.’ ”[16]

    [16] Ibid.

26. The Judge immediately continued as follows:

    “To adopt the last words, the material before me discloses no sufficient basis for treating your matter, as a case of momentary aberration by someone whose congenital problems put him put him (sic) in a position parallel to a child where his coping mechanisms are severely limited. Having said all that, I am going to order that you be sentenced to imprisonment for three years.”[17]

    [17] Ibid.

27. Pausing here, I note that I put to counsel in the hearing that there appears to be an error in the transcription of the Judge’s remarks in that the words “other than” should appear after the word “as” in the second line of the quoted passage since the remarks in Collins were being adopted.[18] Mr Dube disputed that reading.

    [18] In addition there is an unnecessary repetition of “put him” in the third line.

28. In the circumstances, I am able to decide this case without assuming an omission of words.   It is certainly clear from the sentencing remarks, read as a whole, that her Honour regarded Mr L as a person who had a disorder that limited his parenting skills.

29. Her Honour decided to place Mr L on parole immediately. Her Honour said she wanted the Department of Corrective Services to remain involved so that Mr L would continue to attend whatever psychologist or psychiatrist the Department thought appropriate.[19]

    [19] Ibid.

30. All in all, I conclude that the Judge took the view that the offence was very serious but that it was committed by someone who had an autism-spectrum disorder substantially limiting his ability to cope.

31. Mr L gave evidence, which was not challenged and which I accept, that following the sentencing he began to make serious efforts to restore order in his life. He attended a detoxification facility for six weeks and converted to Christianity.  His faith assists him to lead an orderly life based on Christian tenets.  He reported to parole officers appropriately and has continued to pursue his religious convictions. He has been attending a bible college.  He is halfway through the course and hopes to graduate and become a pastor.

32. I accept that Mr L has made a very serious effort to improve himself.

    MINISTER’S DELEGATE’S DECISION

33. The Respondent’s delegate took a decision to cancel Mr L’s visa under s 501 of the Act.[20] Under s 501, the Minister is given a discretion to cancel a visa if the Minister reasonably suspects that the visa-holder does not pass the “character test”. It was common ground between the parties that Mr L failed the character test because he had been sentenced to a term of imprisonment of three years.

    [20] Ibid, at 22ff.

34. I note that the decision taken in this case was not mandatory but discretionary. In reaching the decision to cancel Mr L’s visa, the Minister’s delegate applied “Direction 79”, issued under s 499 of the Act. Standing in the shoes of the delegate, I must also apply the Direction.

    RE-EXERCSING THE DISCRETION

    Direction 79

35. Direction 79 has an explicit objective: the regulation in the national interest of the entry into, and presence in, Australia of non-citizens.[21] Paragraph 6.1(4) records that the purpose of the Direction is to guide decision-makers performing functions or exercising powers under s 501 of the Act. It is also said in paragraph 6.1(2) that where there is a discretion to cancel a visa the decision-maker must consider whether to exercise the discretion given the specific circumstances of the case before him or her.

    [21] Paragraph 6.1(1).

36. Paragraph 6.2(1) is of importance. It says 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”. It also says that “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”.

37. I note that this paragraph is directed explicitly to the protection of the Australian community from harm. Paragraph 6.2(2) refers again to the purpose of effectively protecting the Australian community from harm by ensuring timely decisions are made.

38. I shall not set out the entirety of the text, but a fair reading of paragraph 6.3, as applied to the case before me, leads to the following observations:-

    ·First, Australia has a sovereign right to determine whether a non-citizen is to remain in Australia, remaining in Australia is a privilege, and there is an expectation that a non-citizen will be law-abiding;

    ·Secondly, the Australian community expects that the Australian Government should cancel visas if non-citizens commit serious crimes in Australia or elsewhere;

    ·Thirdly, a non-citizen who has committed a serious crime against a child should generally expect to be denied the privilege of remaining in Australia;

    ·Fourthly, in some circumstances criminal offending 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;

    ·Fifthly, Australia has a low tolerance of criminal or other serious conduct by people who have been participating in and contributing to Australia for a short period of time only; but Australia may afford a higher level of tolerance in respect of a non-citizen who has lived in the Australian community for most of his or her life or from a very young age; and

    ·Sixthly, the length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of a visa cancellation for minor children and other immediate family members in Australia are relevant considerations.

39. These principles must inform my decision.

40. Section 2 of the Direction then provides guidance as to the exercise of the discretion. Relevantly, I must apply Part A. I am directed by paragraph 8 to take into account “primary” and “other” considerations. In applying the considerations, I must give appropriate weight to information and evidence from independent and authoritative sources: paragraph 8(2). I note that the primary considerations should generally be given greater weight than the other considerations. I note also, however, that in accordance with recent Full Court authority it is clear that, in an appropriate case, the “other” considerations may outweigh the primary considerations.[22]

    [22] See FYBR v Minister for Home Affairs [2019] FCAFC 185(24 October 2019) at [76], [105].

    Primary Considerations

41. I now turn to consider and apply the primary considerations. The first primary consideration specified in paragraph 9(1) is the protection of the Australian community from criminal or other serious conduct. I must have regard to the nature and seriousness of Mr L’s conduct to date and the risks to the Australian community should he commit further offences or should he engage in other serious conduct: paragraph 9.1(2).

42. Turning to the nature and seriousness of the conduct, I find, contrary to the submission made by Mr Duncan, that I should act on the basis that Mr L’s crime, being of a violent nature and one that has been committed against a child, must be viewed very seriously. I must so act regardless of the sentence imposed.[23]  I am required to take into account the frequency of the non-citizen’s offending (paragraph (g)) but the shaking assault, which the sentencing Judge considered as one event only, is the sole instance of criminal offending before me.

    [23] Paragraph 9.1.1 (a) and (b).

43. I turn now to consider the risk to the Australian community should Mr L commit further offences or engage in other serious misconduct. Paragraph 9.1.2(1) refers to some conduct (and the harm that would be caused if it were to be repeated) as being so serious that any risk of repetition may be unacceptable. I note that explicit direction.

44. Turning to consider the risks to the Australian community, I must have regard to, “cumulatively”, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct and the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the noncitizen reoffending and evidence of rehabilitation achieved by the time of the decision.

45. In the Respondent’s Statement of Facts, Issues and Contentions, the risk of harm to the Australian community is identified as a risk to future children that Mr L might father.[24] It was further put that Mr L and his present partner plan to have a child or children and that the child or children would be at risk.[25]

    [24] Exhibit 7 at [29].

    [25] Ibid, at [33].

46. Mr Dube went further in his oral submissions and widened the potential risk of violence to other community members. I would reject the wider submission. The Tribunal must have a proper evidentiary basis before it draws inferences of this type. In the circumstances of this case, there is no expert evidence before me led by the Respondent that the assault Mr L committed some years ago in a domestic context might be repeated against other community members. Moreover, there is no suggestion in the evidence of further acts of violence by Mr L in the six years since the assault in 2013.    

1. The evidence I have before me does support a conclusion that because of his autism- spectrum disorder, Mr L is at risk of reoffending in respect of any future child he fathers, at least where he is left alone with the child. In this regard, Mr Duncan pressed me with the submission that Mr L had “learned his lesson”, so to speak, and that his shift-work was responsible for a “brain-snap” decision to assault his child. I do not accept Mr Duncan’s submission in this regard to the extent that it focusses predominantly on the difficulties Mr L faced as a shift-worker. I do not doubt that the shift-work and associated sleep deprivation had their role to play in the offending. The sentencing Judge referred to these factors. 

2. Nevertheless, parents have all sorts of difficulties and pressures to face. Some of these may relate to money, whilst some may relate to their own relationship, while yet others may relate to stresses caused by illness, or by other family members, or by employment, or by the lack of employment. These are examples only of the challenges parents face. The difficulty Mr L confronted was not simply shift-work: it included his limited capacity to cope with stress given his autism-spectrum disorder.

3. In my opinion, there is a risk that Mr L might re-offend in the future should he become a father again. I accept that Mr L would do his very best to avoid a situation where he is left alone with a child when he is feeling poorly or stressed or where the child is overly demanding.  His present partner, who is aware of his past offending, would also, no doubt, exercise a high degree of vigilance in respect of Mr L’s behaviour.  Nevertheless, I do not conclude that Mr L would pose no risk to a baby. In this respect, I would note that I believe Ms W underestimated in her evidence the difficulties that her son would face as a future parent. Mr L has a disorder that makes parenting a very substantial challenge for him.

4. That said, reading Direction 79 as a whole, I believe the nature of the risk I am required to consider is quite specific; namely, the risk to individuals or the Australian community. One clear purpose of the Direction is to regulate the removal of non-citizens from the Australian community where they pose a risk to that community.

5. The risk that Mr L would pose is a potential risk to any future child he may have. On the evidence before me, he does not pose a present risk to any living individual.  Removing Mr L from the Australian community would not decrease the nature of the risk that he poses to present members of the Australian community (since I found that to be nil); nor would it eliminate any risk that he might pose to any child he fathers in the future. If he and his partner (who is Australian) were to emigrate to New Zealand, any new-born child they had there would face the same risk at Mr L’s hands.  

6. It seems to me, therefore, that the nature of the risk posed by Mr L is not attenuated by his removal to New Zealand. That is an important feature of the application before me.

7. The next primary consideration I must take into account is the best interests of minor children in Australia. Mr Duncan submitted that Mr L may, in the future, enjoy a positive relationship with his daughter. Mr L gave evidence that he has spoken with his daughter and would wish to develop that relationship. Mr L confirmed, however, that there were no orders in place that allowed him a right of parental access.

8. In all the circumstances of the case I am not prepared to attach any weight to this factor. On the one hand, I do not think Mr L’s continued presence in Australia will have any negative effect on the child; but, equally, I am not prepared to conclude that Mr L enjoys at the present time any meaningful prospect of a relationship with his daughter that I should take into account in his favour.  

9. In all the circumstances, I do not think the best interests of minor children in Australia arises as a factor, either for or against Mr L, in my decision.

10. The third primary consideration I am required to consider is the expectations of the Australian community. I accept that the Full Court of the Federal Court[26] has made it clear that this is not something I am to investigate for myself. It is sufficient to note in this case that the expectations of the Australian community are against Mr L’s remaining in Australia.

    [26] FBYR (supra).

    Other considerations

11. I turn now to the other considerations which I must consider. These are listed non-exhaustively in paragraph 10. The first consideration (international non-refoulement obligations), I need not consider as it is irrelevant. The third consideration (namely, on Australian business interests) does not arise either. The fourth consideration (namely, the impact on victims) is also one I do not see arising in this case.

12. This leaves two considerations: namely, the strength nature and duration of Mr L’s ties and the extent of impediments he would face if removed.

13. So far as the strength, nature and duration of ties to Australia is concerned, I would note that Mr L has lived in Australia from the age of 14. I note the ties he has with his present partner and with immediate family members who are all present in Australia.[27]  I accept that the move to New Zealand would be disruptive.

    [27] With the exception of his father.

14. Ms W conceded that at the present time she has to fly some significant distance within Australia to see Mr L and that she could also fly to New Zealand.

15. I do attach some weight to the time Mr L has been contributing positively to the Australian community. I accept that he has a good work history. The Respondent submitted (although in connection with another submission) that Mr L “had built up a respectable and varied employment history” in Australia.[28] I agree with that submission.

    [28] Exhibit 7 at [60].

16. Mr L now has a serious relationship with a new Australian partner and they are hoping to marry and start a family.  Removal would be disruptive to them.  Whilst I think it is likely that Mr L’s partner would travel with him to New Zealand to establish a life there, it is nevertheless true that there will be some difficulties associated with their departure from Australia and re-establishment in New Zealand.

17. I must also have regard to the extent of impediments if Mr L is removed. I do not think there are any impediments arising from the social welfare system as such. Broadly speaking, New Zealand has an equivalent social welfare system.

18. Mr L does have, however, a number of family members in Australia and has an intimate familiarity with Australian life. I think it will be harder for him than for others, given his autism-spectrum disorder, to establish himself in New Zealand. On the evidence before me, his only existing relationships will be with grandparents, who are themselves elderly. I note in passing that Mr L does not seem to enjoy a close relationship with his father, who did not come with the family to Australia in 2001.

19. Under the rubric of “other considerations”, I believe I must also take into account the nature of the offending in this case. The offending was not treated by the sentencing judge as involving vicious or premeditated violence against a child. I think it is clear that the offending was treated by her as an ill-judged response to a stressful situation by a person whose coping skills were limited.

20. The criminal law penalised Mr L’s behaviour, but I should take into account, in my opinion, the circumstances of the offending under “other considerations”. Mr Duncan submitted to me that I should have regard to the mitigating factors accompanying the commission of the offence as part of my consideration of the primary considerations. As a matter of construction, I do not think that follows. I am required under paragraph 9.1.1(1)(b) to act on the basis that crimes of a violent nature against children are viewed very seriously regardless of the sentence imposed. I do not accept, however, that I should exclude from consideration the nature of the offending. Obviously, if this offending had been premeditated and malicious, the offending would stand to be considered in a very different light to offending that is the result of poor judgment by a person with cognitive limitations.  It seems to me that I must take the full circumstances of the offending into account and I do so.

    Weighing up the considerations

21. All in all, I am persuaded that the other considerations I have identified in Mr L’s favour outweigh the primary considerations against him.  In this regard, I note that I have given weight to the fact that Mr L has made a positive contribution to the Australian community in his work history until the time he lost his position. I have given weight to the length of time that Mr L has spent in Australia: he has spent most of his life in Australia including all of his adult life. I have had particular regard to the fact that Mr L is a person of limited capacity with cognitive problems in some areas of his life, which are matters that are relevant to a complete assessment of his offending. That said, I accept that I must view his offending as very serious in accordance with the Direction and I accept that the expectations of the Australian community favour cancellation. I have also taken into account that Mr L does not present a risk to the Australian community at the present time and he and his partner would face a degree of disruption to their lives if Mr L were removed.  I accept that Mr L would pose a risk to any future child he and his partner might have, but that risk would not be attenuated by his removal to New Zealand.  

22. Like the delegate, who found the case a difficult one,[29] I have not found this application easy, but I have concluded that in all the circumstances it is appropriate to set aside the decision of the delegate.

    [29] “G” Documents at 35 (paragraph [97]).

23. Finally, I would encourage Mr L to consider seriously his need for further psychological evaluation and treatment.  It seems to me that he underestimates the assistance he requires to prepare himself to be an effective and proper parent. Although he pointed to the fact that he had undertaken various parenting courses, I think it is important for Mr L, and for those who care about him, to understand that he needs intensive one-on-one psychological assistance and treatment before he becomes a parent again.

    DECISION

24. The Tribunal sets aside the decision under review and substitutes a decision that Mr L’s visa not be cancelled under s 501(2) of the Act. This decision will have the effect of reinstating Mr L’s visa.

71.     I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member.

72.     

…………………[SGD]…….…………………

Associate

Dated:  20 December 2019  

Date of hearing:  4 December 2019      

Applicant’s representative:                Mr P. Duncan of Newland Chase Pty Ltd     

Respondent’s representative:            Mr B. Dube of Sparke Helmore