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

[2022] AATA 3200

LYVD and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3200 (1 September 2022)

Division:GENERAL DIVISION

File Number(s):      2022/4936

Re:LYVD  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:1 September 2022

Date of written reasons:        4 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 – entrenched anti-social behaviour – applicant a national of New Zealand – prior cancellation of visa  –interests of minor children – risk profile tending towards low -– decision under review set aside and substituted

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

4 October 2022

1. After the delivery of my oral reasons, I received a request for written reasons which I now publish.  These are the reasons I read out, with minor amendments only.

2. This is an application by LYVD, a person whose name has been anonymised in order to preserve the confidentiality of a victim’s identity and to whom I shall refer in these reasons as “the applicant”.  The applicant seeks to have a decision of the respondent’s delegate dated 8 June 2022 set aside. By that decision, the delegate declined to revoke the cancellation of the applicant’s visa which had come about earlier, and mandatorily, under the Migration Act, 1958 (Cth) (“the Act”).

3. The delegate who conducted an internal review on the applicant’s application and decided not to revoke the cancellation decision was obliged to consider two questions as part of the internal review: first, whether the applicant passed the so-called “character test” as elaborated in section 501 of the Act; and secondly, if he did not pass that test, whether there was another reason for the cancellation decision to be revoked. These are set out in section 501CA(4).  Given the extended sentence the applicant received for certain offences he had committed, there was no doubt that he did not pass the character test: see section 501(6)(a) and 7(c).  That conclusion was conceded to be correct by the applicant, and that concession was quite properly made in my opinion.  The only substantial question before the delegate, and before me, was whether there was “another reason” for the visa cancellation to be revoked: see section 501CA(4)(b)(ii).  In reaching his or her decision, the delegate was required to apply Direction 90 issued under section 499 of the Act[1].  I, too, am obliged to apply the Direction.

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

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions that were addressed by the delegate. As I have said, the first question was properly conceded by the applicant to have been correctly answered by the delegate. 

5. In respect of the second question, I note that the Tribunal proceeds in matters like this de novo, to use the Latin expression.  That is, the Tribunal hears evidence, receives documents, draws inferences, and makes its own final findings of fact: it does not merely review the decision before it for error.

6. This manner of proceeding implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me; equally, I may set aside a decision under review notwithstanding the absence of any discernible error in the delegate’s reasoning if that is the correct or preferable decision on the evidence.

7. At the hearing before me, Mr Poynder appeared for the applicant; Mr Sheedy, for the respondent.  I am indebted to them both for their measured advocacy and assistance in what has been a difficult matter.

   STATEMENT OF CONCLUSION

8. I have decided to set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.  I now set out the background facts and then my reasons for this conclusion.

   BACKGROUND FACTS

9. The applicant was born in May 1981 and was, therefore, 41 years of age at the time of the hearing before me. Although born in Somalia, the applicant holds New Zealand citizenship.  It follows that if I were to affirm the decision under review, the applicant would face removal to New Zealand, or, I assume, Somalia ‒ but at his choice.

10. It would appear that the applicant’s father left the family after their parents’ divorce in 1994, that is, when the applicant was about 13 years of age. I accept the evidence that the applicant played a leading role in the family from that point onwards. I accept, for example, what appears in the applicant’s submission (see Exhibit R1, p 143, paragraphs [4] and [5]).

11. It would appear that the applicant left New Zealand for Australia in 2000, at the young age of 19.  He was seeking a better life and opportunities.  He did so with the intention of assisting the family to transition to life in Australia: he did not seek to leave his family behind. I accept that his mother, who was a single parent, would have relied heavily upon him during this time. I accept that he played, as he said, an important role in his younger sisters’ upbringing and was a large part of their daily lives.  In short, he acted responsibly and creditably at this stage of his life.

12. I accept further that the applicant met his future wife, Ms K, while in Australia as disclosed in paragraph [7] of his submission (Exhibit R1, page 144).  The marriage took place in 2006.  There have been a number of children born from the marriage‒ four in all‒ and so I have confidence that the marriage, despite its fluctuating fortunes, has been important to both the applicant and Ms K.  Apart from anything else, the children remain an important bond between them.

13. I find that the marriage did become very unhappy in around 2015, although Ms K was expecting her fourth child at this time. I accept also that the applicant left Melbourne in 2015 for Sydney to open a branch of a training organisation in which he was involved with a childhood friend and partner, Mr S.

14. At this point, the applicant took decisions which were to lead him to jail. I find that in 2016, the applicant began to experiment with crystal methylamphetamine or “ice”.  I accept that the applicant was influenced by a so-called friend (called “Adam” in the evidence before me) to try ice, but I do not accept what appears in the applicant’s statement that he was influenced unduly by Adam in this regard. I note that the applicant was in his mid-thirties at this time, and while I acknowledge people are capable of foolish decisions at any stage, the applicant had well and truly crossed the threshold into adult life.  He must take responsibility for his decision to experiment with drugs and to involve himself in a persistently anti-social lifestyle.  Indeed, it was a general feature of the applicant’s evidence ‒ a very disappointing and concerning one ‒ that he largely sought to disown responsibility for his actions. 

15. The applicant’s criminal record was before me (see Exhibit R1, pp 28ff).  It contains a very large number of offences.  It is sufficient to refer to the offences by reference to their general type.  The applicant has been involved persistently in a number of very serious driving offences. These have included driving whilst disqualified and while under the influence of alcohol or a drug.  Several of the offences involved high-speed chases with police.  He was in no condition to drive, let alone drive at excessive speeds of 180 and 200 km/h, as he did on those occasions. It is well known that alcohol, and ice in particular, can work a disinhibiting effect, giving a person an undue sense of confidence, which can result in highly reckless behaviour.  That reckless behaviour can result in serious harm to others.

16. The applicant also engaged in a number of dishonesty offences.  These have included the fraudulent use of another person’s credit card to make significant purchases.  That is a very serious matter because it indicates plainly that the applicant had decided upon a course of dishonest conduct. 

17. The third type of offence which I would mention involves a violent assault upon his sister.  I accept that the sentencing remarks refer to this assault as one upon his wife, but the applicant’s sister was in fact the victim.

18. Of particular concern in this review is the fact that the applicant had his visa, a special category temporary visa, cancelled on an earlier occasion. His visa was cancelled in 2018 when he was jailed for 12 months for a number of offences.  His visa was cancelled mandatorily as required by law.   On that occasion, the applicant made submissions seeking reinstatement of his visa, and a delegate of the Minister decided to revoke the cancellation of the visa.  Most people in the applicant’s position would regard that as a “lucky escape”, to use a colloquial expression, and draw the obvious conclusion that a fundamental change in behaviour was required.

19. On 3 February 2020, the applicant was convicted of a number of offences which are set out at Exhibit R1, pp 28-30, and which led to his being jailed for an aggregate period of 26 months with a non-parole period of 18 months commencing on 7 April 2019 as I understand the record.

20. The applicant has been in jail or in immigration detention since that time.  It is a noteworthy feature of the most recent offending that it occurred very soon after the applicant’s release from jail, and in circumstances where he fully appreciated that further offending would inevitably see his visa cancelled again with a requirement that he leave Australia for New Zealand or Somalia (at his choice).  That is a very significant factor in this case.  Once again, the offending involved driving while under the influence of alcohol and while disqualified, and being involved in a high-speed and dangerous police chase.  It also involved a breach of various bonds that the applicant had given to the courts by way of a promise to be of good behaviour.  A bond is, in effect, a formal promise made by a person to a court, standing in the place of the community, to be law-abiding.  The bond is offered to avoid more serious punishment.  Breaching it is a significant matter not simply because it entails a repudiation of the law but because it represents a defiant breach of trust towards the Australian community.  It is important, I believe, to bear that in mind.

21. I note further that there have been a number of occasions when the applicant has been found either to have acted poorly in jail or in immigration detention. Of particular concern is the fact that the applicant was apparently still misusing drugs in immigration detention. More positively, it would appear that he has reported his drug problems to authorities there and explored options for rehabilitation (Exhibit R2 at p 329).  I accept that he has not undertaken a medically recommended substitute for the drugs he has been taking; but I do accept, although with a degree of reluctance, that he has refrained from drugs deliberately over the last 18 months or so and is, therefore, on the road to breaking his physical and psychological dependence upon drugs.

    DIRECTION 90

22. Having summarised briefly the relevant facts, I now turn to apply Direction 90.

23. Like the delegate, I must apply this Direction in addressing the question of whether there is another reason for the cancellation decision to be revoked.  I set out part of the background to the Direction in Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff.  I customarily quote these paragraphs in my decisions, and I do so again here:

    “32 … 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.”

24. There are a number of primary considerations that I must consider. The first is the protection of the Australian community from criminal or other serious conduct.  Paragraph 8.1(1) requires me to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they will be law-abiding and will not, amongst other things, cause or threaten harm to individuals or the Australian community. I bear this principle steadily in mind.

25. I must have regard to the nature and seriousness of the applicant’s conduct to date. 

26. Road accidents can cause enormous harm to the community. It is no exaggeration to say that lives are blighted by irresponsible and reckless driving.  It is clear that the applicant has placed the community at serious risk as a result of his driving. I do not underestimate the effect of criminal offences involving dishonesty and fraud. There have been a number of occasions now when the applicant has engaged in dishonest practices. The Australian community is entitled to expect that they will enjoy the use of their own property without unlawful interference. Clearly enough, the violent incident involving the applicant’s sister is also very serious. I bear in mind what the sentencing Court had to say about the circumstances of that offence. The victim was choked so severely that she urinated upon herself. She was thrown to the ground by the applicant and hit a bench as she fell. This sort of violence clearly poses a very serious risk of harm to individual members of the community. The Direction requires it to be considered very seriously, and I do so.

27. I must have regard to the sentences imposed by the courts and I note that these are lengthy. The sentences reflect persistent defiance of the law by the applicant. The act of violence towards the applicant’s sister must be regarded very seriously irrespective of the sentence imposed.

28. I am required also to have regard to the frequency of the applicant’s offending and whether there is any trend of increasing seriousness. There has been great frequency in the offending. It continued more or less unabated from the applicant’s arrival in Sydney in about 2015. In my opinion, there is a trend of increasing seriousness because the applicant has not been deterred by jail sentences or, indeed, by the first revocation of his visa. That does, in and of itself, mark a trend of increasing seriousness because the criminal justice system and the Migration Act regime have been insufficient deterrents up to this point in time. I am to have regard to the cumulative effect of repeated offending, and I do so, noting that the offending has been extremely frequent with the exception of the violent assault upon the sister. I note that I am to have regard specifically to the fact that the applicant was formally warned of the consequences further offending would have upon his migration status. I have already indicated that he has not exercised proper control over his behaviour in Sydney.

29. All in all, the nature and seriousness of the applicant’s offending to date must be categorised as very serious.  There is simply no alternative to that conclusion in my opinion.

30. I must have regard to the risk to the Australian community.  I must consider here the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct. I accept that there is a potential for extremely serious harm if the applicant drives a vehicle whilst under the influence of either alcohol or drugs. It is clear that in the past, his disinhibition has led him to accelerate to extraordinarily high speeds and this has placed the community at risk of extreme harm. The fact that there has been no injury to date does not bear on the assessment of risk in my opinion.

31. Were the applicant to reoffend by defrauding community members, I accept that they would suffer economically and might lose significant amounts of money.  I accept further that if the applicant were to engage in violence, whether towards a family member or a member of the community, that would be a very serious matter.

32. I must also have regard to the likelihood of the applicant reoffending.  I note that this is a matter to which I am required to have regard “cumulatively”.  I must take into account information and evidence on the risk of the applicant reoffending. The expert opinion that that was in evidence before me and the oral evidence by Mr Watson-Munro in support of his opinion were to the effect that the applicant’s risk of reoffending is, and I quote, “trending to low”. The respondent accepted in final submissions that this assessment of risk was accurate.

1. I have considered the matter carefully. Initially, I must say I was minded to reject this assessment of risk because it seemed to me that there was simply too long a history of drug use, a lack of deterrent efficacy in the earlier imposition of gaol terms and the cancellation of the applicant’s visa, together with a number of episodes of antisocial offending and drug possession whilst in gaol and immigration detention. I gave these matters quite some consideration. 

2. I have decided, however, that I should accept the accuracy of the expert conclusion. There are a number of reasons for this decision.  First, I do believe that the risk of reoffending will be linked substantially to where the applicant lives in the community.  It is a rather striking feature of this case that the applicant committed offences in Sydney only, namely, when he was away from the protective support of settled family obligations and routine.  He was of, course, a mature man when he first went to Sydney. But he has shown himself unable to live alone responsibly, that is, without resorting to drugs or alcohol or bad company.  He was tempted while alone in Sydney to a way of life that no doubt seemed at the time more attractive and exciting than the boring confines of his various roles as a responsible and predictable husband, father, and son in Melbourne.  His life in Melbourne was without incident, I note, and I regard the applicant’s intention to re-establish himself in Melbourne, which is his wish as well as his wife’s, as an important protective factor. 

3. Secondly, I do believe the applicant has shown himself in the past to be a responsible and decent man. The evidence suggests that he undertook quite significant responsibilities at a young age when his parents divorced. In one sense, it might be thought that returning to New Zealand, a country with an equivalent standard of living, which is an option now open to him, would provide the applicant with an excuse to escape responsibilities in Australia, or at least keep them at a safe distance while he pursued his own interests.  After all, he might be tempted not to bother with his wife and children.  The applicant does not seek that, however. Rather, he does seek ‒ and genuinely so in my opinion ‒  to re-establish a relationship with his wife and resume parental responsibilities.  I give credit to him as a person who has in the past shown himself willing to assume and shoulder responsibilities. I accept that he wishes to do so in the future, and that is an important motivating factor so far as lowering the risk of recidivism is concerned.

4. I also accept that the applicant sought assistance for what was quite a pronounced drug dependence on 14 October 2020 (see the medical notes at Exhibit R2, p 329).  It is recorded that he was “desperate to stop” and accepted that he needed assistance.  That event, which is recorded in the medical notes, shows a turning point in the applicant’s approach to the use of illicit substances.  It might well be said that it is not a decision before time. That is undoubtedly true; but it is nevertheless a decision he took. I have weighed up my concerns that the applicant did not begin with a drug-substitute program (whereas the notes to which I have referred record that he wished to opt for “Buvidal”).  He ended up using no drugs at all. Mr Watson-Munro’s opinion is predicated on an assumption that the applicant has not used drugs since around that time. I am prepared to accept that as a matter of fact, but I do note that the applicant’s drug use has been heavy and prolonged. Of course, in evaluating risk, there is the obvious point to be made that the applicant has received gaol terms in the past and has had his visa cancelled once.  Obviously enough, one might have thought those experiences would have been effective as a warning and deterrent.  They were not.

5. Nevertheless, the applicant impressed me as a man who can be heedless and reckless. I make that observation because someone like the applicant might well need the cold reality of extended confinement in a detention centre as a precursor to deportation.  He would need it to understand finally the reality of the situation he is facing. The applicant is undoubtedly an intelligent man; but even so, it may well be that it is only now that the reality of his deportation has truly been impressed upon him. I do not doubt that he now finally understands what will happen if he reverts to drugs.  I also believe that there will be an opportunity for him to reintegrate himself into the Somalian expatriate community in Melbourne.  That is important.  I believe also that his sister, who is planning to resettle in Australia from South Africa this November, will have a beneficial and stabilising effect upon him.  All in all, and having regard to the expert opinion which I am obliged to consider, I accept the risk of recidivism as trending towards low.

6. That said, I note that it is a matter to which I am required to have regard “cumulatively”, that is, in conjunction with the nature of the harm to individuals or the Australian community should the applicant engage in further misconduct. I have already indicated that the nature of that harm is very serious.

7. I must have regard to family violence committed by the applicant. This has been a difficult matter to assess. The assault upon the applicant’s sister occurred, rather unusually, in a public place; and rather unusually also, it appears to be a one-off incident. It is a very serious matter, but it is, as I say, an unusual instance of family violence for the reasons just given.  However, I was not impressed by the applicant’s denial of the offending, and that is a matter which I must take into account under the Direction. I was unable to discern from the applicant’s evidence that he has any real understanding of the impact of violence by men against women and of the impact his most serious assault would have had upon his sister.  I treat this instance of violence as a one-off episode, but nevertheless a very serious one, where the applicant has failed to demonstrate responsibility or understanding of the impact of his actions.

8. I must also have regard to the best interests of minor children in Australia. This is a matter to which the delegate gave substantial weight.  I would give it weight too. 

9. Children are very often the innocent victims of the very poor and selfish choices their parents make. Their interests can favour revocation of the cancellation decision when there is the realistic prospect of a family unit being re-established. I bear in mind, however, that whilst the relationship in issue in this case is a parental one, for many years now the applicant has been effectively absent from his family following a rupture in the marriage and his decision to try to establish a business in Sydney. 

10. I believe the children would benefit substantially from the applicant’s drug-free presence, although the youngest children would not have any memories of the applicant.

11. The applicant’s wife gave evidence that she would not follow him to New Zealand if he were deported. I accept that evidence and indeed it may well be the more prudent decision given her overall circumstances and the desirability of maintaining stability in the family.

12. I accept in part what the respondent has put about this issue; namely, that the applicant might support his family financially from New Zealand. But I note the applicant would have his own independent rental expenses to meet before being able to remit money from New Zealand. More fundamentally, provided the applicant stays away from drugs, his children will benefit from a responsible male role model in the household.  On the other hand, I am firmly of the view that if the applicant were to resume a drug habit, the children’s best interests would be served by a severance now of the father/child relationship to save further pain in the future.

13. I am mindful here of the delicate balancing that must occur. Disruptive parents affect, and sometimes destroy, the stability of their children’s lives, when the children are owed a safe and stable environment in which to grow, and hopefully thrive, and eventually launch themselves into responsible adult lives. Disruptive parents are sometimes better removed from the picture altogether, and sooner rather than later: I have no doubt about that.  Nevertheless, a secure family is important to the proper psychological growth in a child, and it is preferable, where possible, to have both parents responsibly fulfilling their roles where that is a realistic possibility.  Accordingly, subject to the caveats I have indicated, I would accord this consideration significant weight in favour of revoking the decision.

14. The consideration in paragraph 8.4 concerning the expectations of the Australian community weighs against the applicant. He has engaged in serious conduct in breach of the expectation that he must obey Australian laws. “As a norm” ‒ although not as an inflexible rule ‒ the community expects the Government to remove people like the applicant from Australian society. I note further that I am to have regard to the act of family violence, which was also of course an act of violence against a woman, as a particular matter of concern so far as the expectations of the Australian community are concerned: it is specifically mentioned in subparagraph (2). I note that I am to have regard to these expectations whether or not the applicant poses a measurable risk of causing physical harm to the community. I note that I am to apply these considerations without independently assessing them for myself. 

15. Paragraph 9 contains a number of other considerations to which I am required to have regard.

16. I do not believe that the “impediments-on-removal” consideration, which I have assessed by reference to New Zealand, is particularly important in this case.  There may be some initial difficulties, but the applicant is familiar with New Zealand and has had the benefit of living in a comparable country, Australia. I do not have any evidence of the impact of my decision on victims, in particular the applicant’s sister, and so I leave that to one side. I do believe that the applicant’s wife has a legitimate interest in the ongoing comfort and support provided by her husband. This support goes well beyond financial support only.  She has an interest in his involvement in the rearing of children and participation in family life which will make her existence easier and more fulfilling overall, provided of course he stays away from alcohol and drugs. She has made it clear that she values the relationship with her husband and wishes it to continue.  I accept that evidence.  The applicant’s own interest in continuing his family life in Melbourne is also something to which I ought to have regard.  I accept that he would suffer emotionally if he were removed from his family.

17. Finally, I note that, generally speaking, primary considerations should be given more weight than the so-called other considerations in paragraph 9.

    WEIGHING OF CONSIDERATIONS

18. I now turn to the weighing of the considerations.  This has been an extraordinarily difficult task.  It need hardly be said that the primary considerations of protection of the community, family violence and expectations of the Australian community all tend against revocation. There is also no doubt that the applicant has already had the benefit of a warning in respect of a visa cancellation: he has already had his visa cancelled on account of his criminal conduct once before. He was a mature man at the time. He knew that further criminal offending would result in cancellation of his visa and that further leniency to him was unlikely to be extended another time.

19. Nevertheless, there are somewhat unusual features in the offending as I have said. The offending all took place over a confined number of years in one city where the applicant was living away from family and away from what was a protective factor for him.

20. I accept that much of the offending was influenced by the consumption of drugs to which the applicant had not earlier misused on the evidence before me.  His risk profile is very much dependent upon whether he reverts to a drug- or alcohol-misuse habit. I have assessed his risk of reoffending as trending towards low, which is a conclusion supported by expert evidence that the respondent indicated to me was reliable evidence.  A risk trending towards low is not of course a “zero” risk. And the seriousness of consequential harm should he misuse drugs is very great in this case.  I particularly bear in mind the extremely antisocial aspect of driving under the influence of drugs or alcohol and at high speed.  This poses a particularly severe threat to the community.  The family violence is also of genuine concern and the dishonesty offences of further concern.  Moreover, not all offending can be sourced to drug or alcohol misuse.

21. The interests of the minor children do count, however, as a primary consideration. Like the delegate, I have found that their interests do favour revocation of the cancellation decision.  The fracturing of family life and the ongoing effects of the removal from children of a parent are often significant, although I would note that I have not had regard to the articles tendered by the applicant in this regard. It seems to me that the matter is one that is more appropriately viewed in this case through the lens of the common sense of the situation and the observations made by Mr Watson-Munro in his report.  Children are very often the innocent victims, as I have said, of the selfish and destructive choices of their parents.  The interests of these children do count substantially in my opinion. The applicant’s wife’s interest in preserving the marriage also counts substantially in favour of revocation although I note it is not a primary consideration. 

22. All in all, having applied Direction 90, I have decided that the correct or preferable decision on balance favours the revocation of the cancellation decision.  It is very much a decision on balance.  If the risk profile had been higher, or if there had been no children to consider, I would have affirmed the decision under review.  But that is not the case.  Returning to the language of the Act, I have decided that there is in my review of the matter “another reason” for the revocation of the cancellation decision under section 501CA(4)(b)(ii). 

    DECISION

23. I shall, therefore, set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.

    ………[Sgnd]……………….

    Associate

    Dated: 4 October 2022

Date of hearing:	19 and 22 August 2022
Advocate for the Applicant:	Mr N Poynder Frederick Jordan Chambers
Advocate for the Respondent:	Mr M Sheedy Sparke Helmore Lawyers