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

[2022] AATA 3947

MLFT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3947 (26 October 2022)

Division:GENERAL DIVISION

File Number(s):      2022/6414

Re:MLFT

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:26 October 2022

Date of written reasons:        22 November 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

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – serious offending – low risk to the Australian community – gaol and immigration detention as powerful deterrence –– ongoing detention as a consequence – other considerations outweighs primary considerations – another reason to revoke the mandatory cancellation – 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

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463

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

22 November 2022

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

1. This is an application by “MLFT”, a person whose name is subject to a confidentiality order and to whom I shall refer in these reasons as “the applicant”. The applicant seeks a review in this Tribunal of a decision reached by the respondent’s delegate dated 4 August 2022. By that decision, the delegate refused to revoke the cancellation of the applicant’s protection visa.  The cancellation had taken place earlier, and mandatorily, under section 501(3A) of the Migration Act 1958(Cth) (“the Act”).  The visa was cancelled after the applicant was convicted of the serious criminal offence of rape and sentenced to a lengthy term of imprisonment. part of which he was required to serve on a full-time basis in gaol. 

2. The applicant made a timely application for an internal review of the cancellation decision. The delegate who was tasked with conducting that internal review had two questions to address under section 501CA(4)(b). The first question was whether the applicant satisfied the so-called “character test” as elaborated in section 501(6): see subparagraph (i). If the answer to this question was “no”, the second question was whether there was another reason for the cancellation decision to be revoked: see subparagraph (ii). In this latter regard, the delegate was required to apply Direction 90[1] issued under section 499 of the Act.

   [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

1. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions. In matters like this, the Tribunal exercises its jurisdiction de novo, to use the Latin expression. That is to say, I do not merely review the delegate’s decision for error. I hear oral evidence and submissions, receive documents and written submissions, and draw my own final conclusions.  It follows from this manner of proceeding that 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 before me; equally, 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. At the hearing before me, Dr Donnelly appeared for the applicant; Ms Jones-Bolla for the respondent.  I am grateful to them both for their measured advocacy and assistance.

STATEMENT OF CONCLUSION

1. In my opinion, the correct or preferable decision on the evidence before me is to find that there is “another reason” for the cancellation decision to be revoked.  The formal decision I shall make is to set aside the decision under review and substitute a decision that the cancellation of the applicant’s visa be revoked.  I now turn to set out the background facts and my reasons.

BACKGROUND FACTS

1. The applicant was born in 1990 in Iran.  He remains an Iranian citizen. He arrived in Australia in 2011 and has held most recently a Class XB (Subclass 866) protection visa.  It is this visa that was cancelled mandatorily.

1. I do not need to canvass the applicant’s work history in Australia. He has been gainfully employed for the majority of his time in Australia. Before being gaoled, he operated his own business, a removalist and transport company, and it employed members of the Australian community.

2. The applicant’s former girlfriend gave evidence on his behalf, but this relationship ended many years ago.  The applicant submits that he now has a serious relationship with another person, a Ms W.  That relationship first developed about 18 months ago whilst the applicant was being held in immigration detention.  The applicant does not have immediate family members in Australia or any children.

3. I now turn to consider the applicant’s criminal offending. The applicant’s criminal record was before me in evidence. It consists of one offence, that of rape.  The sentencing remarks were before me[2] and I accept them. 

   [2] Exhibit R1, pp 56ff.

10.  The facts of the offending are as follows.  The applicant was living in Brisbane in July 2016. The applicant met his victim over the Internet via a dating website.  She came to his house. They ate together, watched some YouTube videos, and then began to kiss.  She expressed no objection to accompanying him to his room.  It seems clear enough that their mutual intention was to be physically intimate in a private setting.

11.  She allowed him to undress her and he also removed his own clothing. The sentencing Court refers to both parties intending to have sexual intercourse at this point.  While they were still physically apart, she told him to put a condom on. He declined.  The applicant then pushed her onto the bed and began to have sexual intercourse with her without her consent. The victim attempted to push him off, and this clearly showed she was not consenting. There was a further act of forced intercourse before the applicant left the room. He then returned to the room and “dragged her” down the bed and continued to have intercourse with her without her consent.

12.  A criminal prosecution was initiated which proceeded to a trial before a jury in the District Court of Queensland. The applicant was convicted of a single count of rape.  He was 26 years of age at the time of the offence. The Court noted specifically that the applicant had not taken responsibility for his actions and had not demonstrated any remorse: see Exhibit R1 at p 58.

13.  The applicant had in fact denied the offending before the Court.   Part of the evidence he gave to the trial Court (extracted and referred to in the Court of Appeal’s reasons which were also before me[3]) was to the effect that he had himself raised the question of the absence of a condom[4] and the victim had consented to unprotected intercourse.  The applicant’s version of events was, in the event, rejected by the jury. Indeed, the finding of guilt implies that they had no reasonable doubt about the falsity of his version of events. 

[3] See Exhibit R1, at pp 60ff.

[4] Ibid, pp 70-71 and 87 [69].

14.  The sentencing Court referred to the victim’s ongoing emotional and psychological problems.  She felt she had to move home as she did not feel comfortable where she was living anymore: see Exhibit R1, at p 59.

15.  The Court sentenced the applicant to five years in jail and set a relatively low pre-release period of 18 months.  The Court referred to the applicant’s age, the fact that he did not have a criminal history, and that he had a full understanding at that point of the seriousness of what he had done. For that reason the Court concluded that there was “not much for rehabilitation here”: see Exhibit R1, at p 59.   An appeal against conviction was rejected by the Court of Appeal: see Exhibit R1, at pp 60ff.

16.  The applicant was sentenced on 8 November 2017 and entered jail on that date.  His visa was cancelled on 4 December 2017.  The applicant sought an internal review on 28 December 2017.  In April/May 2019, the applicant left gaol and was taken immediately into immigration detention where he has remained. The delegate reached his or her decision on the internal review on 8 August 2022.  That represents a timeframe of some four years and seven months counting from 28 December 2017.  The applicant has now been in immigration detention for some three-and-a-half years.

REASONS

17.  I turn now to consider the two questions that I must address. These are the same two questions that were considered by the delegate on internal review. The first question is whether the applicant passes the so-called “character” test. It is clear that he does not pass this test. The applicant was sentenced to a five-year jail term.  Under the applicable definition, he has a “substantial criminal record” and does not pass the character test for this reason: see section 501(6)(a) and (7)(c).  I should add that it was not suggested by the applicant that he does pass the test.

18. This brings me to the second question I must address; namely, whether there is “another reason” for the cancellation decision to be revoked. Like the delegate, I am required to apply Direction 90 issued under the Act.

Direction 90

19.  I frequently refer to certain earlier prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at paragraphs [32]ff. I usually 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.

20.  I am required to have regard to a number of primary considerations.  The first such consideration is the protection of the Australian community. I note what appears in paragraph 8.1(1) but I shall not read it out today. I bear it in mind, however.

21.  I must give consideration to the nature and seriousness of the applicant’s conduct to date and to the risk to the Australian community should he commit further offences or engage in other serious conduct. In respect of the nature and seriousness of the applicant’s conduct I am required to have regard to the matters listed in subparagraphs (a) to (g) of paragraph 8.1.1(1).

22.  Clearly enough, subparagraph (a) requires the applicant’s rape to be assessed as a very serious crime. It is a crime that is both sexual and violent.  This means that I need not have regard to the sentence imposed, but I note in any event that the head sentence of five years was a long one and marked out the offending as very serious.

23.  So far as subparagraph (d) is concerned, there is no frequency of offending as such.  There were, however, a number of acts of intercourse referred to in the sentencing remarks although only one count of rape was charged in the event.  Otherwise, however, there is no evidence of any other offending before me.

24.  To the extent that the rape involved three separate instances of unlawful sexual intercourse I take that into account as a cumulative effect of repeated offending.

25.  I must also have regard to the risk to the Australian community.  I am to have regard to – “cumulatively” – two matters. First, I am to have regard to the nature of harm to the Australian community or individuals should the applicant engage in further criminal or other serious conduct; and, secondly, I must also have regard to the likelihood of his engaging in that conduct given the matters set out in subparagraphs (i) and (ii) of paragraph 8.1.2 (2)(b).

26.  Should the applicant reoffend, the nature of the harm to individuals would be  extremely serious. It need hardly be said that rape is an extremely serious crime. It carries a significant maximum jail sentence.  In this case the rape could not be said to be the result of any honest misunderstanding.  Rather, it was a deliberately violent and humiliating assault without consent.  This makes the offending very serious, indeed.

27.  I must have regard to the likelihood of this applicant engaging in that conduct again. I believe that the risk of the applicant engaging in this conduct again is low. I say immediately that I do not believe that the applicant demonstrated any genuine remorse before me. The evidence he gave was to the effect that there was a genuine misunderstanding, and that whilst he accepted the Court’s decision as a fact and regretted any unintended harm, he was not guilty morally of having intentionally raped his victim.

28.  I reject this evidence. Applicants to the Tribunal often make the mistake of seeking to downplay their guilt in an attempt to advance their case.  I understand that pressure.  Nevertheless, where no genuine expression of remorse is forthcoming ‒ that is, an expression of remorse for what actually occurred and not for a watered-down version of what occurred ‒ I cannot assess risk on the basis that the applicant has felt genuine concern for his victim and has concluded that his behaviour was unacceptable. That has proven to be the case here. 

29.  I am required, however, under the Direction to assess the question of risk, not remorse as such.  My own conclusion is that this applicant will not likely re-offend in this way. The applicant is an intelligent person.  I note that the sentencing Court observed that the applicant had a full understanding of the seriousness of what he had done whilst having noted earlier that he had not demonstrated any remorse: Exhibit R1, at pp 60 and 59, respectively. The two observations are to be read together and are consistent. I think the Court’s observations are accurate in that this applicant has understood how serious the crime of rape is in Australia. Whatever misapprehension, if any, he might earlier have had about, for example, his entitlement to have sexual relations from a certain point onwards, or his belief that he could get away with rape because it would end up being a case of his word against his victim’s, he has certainly been disabused of it. The applicant understands quite clearly, in my opinion, that any repetition of his offending would see him incarcerated for an even longer period. He also understands that he would risk an extended period in detention as he has faced on this occasion.  The applicant has been in detention for some three-and-a-half years as I have said.  In fact, the five-year term imposed by the Court as a head sentence has now more or less passed, and during that time, the applicant has been detained either in jail or in immigration detention.  Moreover, this applicant will appreciate that, having had his visa cancelled once but restored by the Tribunal, he could not expect any further leniency if he were to repeat the crime. He would simply wait in detention until his removal to Iran (if it were appropriate to remove him to Iran at that point in time) or to a third country.  Either way he would not re-enter the Australian community if he re-offended.  I accept also that a non-parole period of 18 months in gaol is a significant one in its own right.

30.  For this particular applicant, who, as I say, is intelligent, the prospect of gaol and immigration detention on an indefinite basis while a third country is found (or pending his deportation to Iran if the political situation in Iran had changed) offers a very powerful deterrent. 

31.  I have considered Mr/s Zaarour’s psychological report dated 12 May 2021: see Exhibit R1, pp 902ff.  I do not rely on this report. Whilst the report is accurate in saying that the sentencing Court did not view the offence as being an example of the most serious type of rape, it was wrong, in my opinion, for the author to proceed on the basis that there was no physical violence associated with the crime: see Exhibit R1, at p 904.  There clearly was.  I query further the conclusion that the applicant had, as at the date of the report, “a stable relationship with his girlfriend of more than a year”.  Given the date of the report, that relationship cannot be the relationship the applicant presently has with Ms W.  Moreover, whatever relationship the psychologist had in mind, it can only have begun while the applicant was in detention.  It is wrong, in my opinion, to have regarded this relationship as a stable one; and, indeed, it is in my opinion misleading to refer to a “relationship” (given the absence of any time spent freely together in one another’s physical presence).

32.  A further report was provided by Mr Newton dated 26 February 2022: see Exhibit R1, pp 1019ff.  Again I do not accept aspects of this report. The table in the report (see Ex R1, page 1028) indicates that the applicant “now accepts responsibility” for his crime, having initially denied guilt.  The author further notes in the table that whilst there were some past gaps in the applicant’s understanding of consent, there were no persisting issues in this regard (at p 1029).  I do not accept the factual conclusion that the applicant accepts responsibility if this refers to an acceptance of moral guilt. Nor do I accept that the statement that there were gaps in the applicant’s understanding of consent.  It is quite clear from the sentencing remarks and the Court of Appeal’s decision that the applicant had no misunderstanding of the interaction with his victim. In particular, I find the author’s conclusions at [49][5] of the report unsupported.

[5] Exhibit R1, pp 1029-1030.

33.  Nevertheless, I note that my own risk-assessment conclusion is not contradicted by either of these reports; and to that extent, my conclusion is not inconsistent with them.  I accept the respondent’s submission that the applicant has not undertaken any program to address his sexual offending.   For this particular applicant, however, I think it is particularly relevant to assess risk from the position of his own self-interest.  He is an offender for whom gaol and immigration detention are very serious deterrents.  In particular, it has, I believe, been a significant burden on the applicant that he has spent so much time now in immigration detention.  As I have said this applicant is an intelligent man who well understands how he will be treated by Australia’s criminal-law and immigration regimes if he offends again.

34.  Nevertheless, this is a matter to which I must have regard “cumulatively” (that is, in conjunction with the nature of the harm the applicant would inflict if he reoffended), and I do so.

35.  The next two primary considerations (namely, family violence and best interests of minor children in Australia affected by my decision) do not arise in this case.

36.  The final primary consideration is the expectations of the Australian community.  I accept that the expectations of the community are to be found within paragraph 8.4 and I am not to assess them for myself. I accept also that the expectations of the community apply regardless of whether the applicant poses a measurable risk of causing physical harm to the community. I note that the crime of rape, when inflicted upon a woman, is specifically nominated as a crime that attracts special concern insofar as the applicant’s character is concerned: see paragraph 8.4(2)(c). I note further that paragraph 8.4(1) provides that “as a norm”, although not as an inflexible rule, the Australian community expects the Government not to continue to allow this applicant to remain in the community.

37.  All in all, the community-expectations consideration weighs heavily against the applicant.

38.  I must also have regard to so-called “other” considerations under paragraph 9. There is a non-exhaustive list of four such considerations mentioned in the paragraph. International non-refoulement obligations do not arise, in my opinion, as there is no prospect of the applicant being deported to Iran. He held a protection visa and it is not suggested that the situation in Iran has changed. He may not be removed to Iran given the terms of section 197C of the Act.

39.  The extent-of-impediments consideration would only be relevant if a third country were in mind as a likely place to which the applicant might be removed.  There is no such evidence before me, and I am unable to assess what if any impediments there might be.

40.  I am to have regard to any impact on victims of my decision but no information was placed before me, and so I do not take this into account in my deliberations.

41.  I am to have regard to the applicant’s links to the Australian community.  I do not think Australian business interests are affected by my decision. The applicant ran his own business, but I infer that his involvement in the business ended almost five years ago when he was gaoled.

42.  I have real concerns about taking into account what has been put to me as a serious relationship between the applicant and Ms W, approaching that of an engagement.  Ms W gave evidence to the Tribunal.  Despite her age ‒ she is now in her thirties ‒ I have difficulty in accepting her evidence that her relationship with the applicant is a serious and mature one.   She said she initially made the applicant’s acquaintance some years ago and that she began what she considers to be a romantic involvement with him only a relatively short time ago (that is, in March 2021).  The applicant and Ms W can only have been in contact remotely during this time: she has not spent any time with him.  There is little maturity, in my opinion, in her decision to develop what she says is a serious relationship with a person who has been properly convicted of rape.  That fact of the matter is not addressed adequately in her evidence.  I find it strange that she should seriously consider marrying the applicant, and that there should have been discussions about how they would wish to raise children when they have spent no time together. 

43.  All in all, and without wishing to denigrate the sincerity of her conviction, I regard Ms W’s approach to the relationship as quite immature.  So far as the applicant is concerned, he had a different relationship when he spoke with the psychologist, Mr/s Zaarour, but that relationship must have come to an end, and again it appeared to be a “relationship” that was begun while the applicant was in detention.  It was not suggested to the applicant in cross-examination that these relationships have been entered into by him in order to advance his chances of remaining in Australia.  I do not draw, therefore, any inference adverse to the applicant in this connection. But all in all, it cannot be said in my opinion that the most recent relationship the applicant has with Ms W will necessarily be sustained in the long term if he is released into the community.  I give the relationship very little weight.

44.  I give weight, but again it is limited weight, to the contribution that the applicant has made to Australia through his gainful employment and conduct of a business.

45.  The considerations I am to take into account under paragraph 9 are not exhaustively listed. I believe it is appropriate to take into account what I consider to be the most likely outcome of a decision by me to affirm the decision under review. That outcome is continued detention. This is the respondent’s position as outlined in paragraph [46] of its Statement of Facts, Issues and Contentions.

46. I accept that the applicant is ineligible to apply for a further protection visa, but it is also the case that a protection finding has been made in his favour and he may not be refouled to Iran given the terms of s 197C of the Act. He will, therefore, be held in immigration detention until a third country option is found or until the Minister exercises his or her power to grant the applicant a special visa (e.g., under section 195A of the Act).

47.  This scenario implies continuing detention in immigration detention.  That involves necessarily a continuing interference with the liberty of the applicant.  Indeed, as I have pointed out, he has spent some three-and-a-half years in immigration detention.   This is, in my opinion, a matter that counts substantially in the applicant’s favour.  In this connection I would refer in particular to the plurality’s joint judgment in the federal Court decision of WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55; 285 FCR 463. The plurality’s reasons emphasise, if emphasis were needed, the importance the common law attaches to personal liberty as a fundamental freedom.

WEIGHING THE CONSIDERATIONS

48.  I come now to weighing the various considerations under the Direction.  I do not wish to oversimplify the weighing process, but it seems clear that I must weigh the primary considerations I have identified against what I consider to be the very real prospect of ongoing immigration detention in the circumstances of this case if I affirm the decision under review.  I acknowledge explicitly that, generally, primary considerations should be given greater weight than other considerations: that is made clear in paragraph 7(2) of the Direction. Nevertheless, it is also the case that in an appropriate circumstance, other considerations may prevail over even strong countervailing primary considerations.

49.  I am particularly mindful of the seriousness of the offence which the applicant has committed in this case. Rape is a very serious crime under the Direction as it is, of course, in other contexts as well.  Rape victims very often suffer ongoing physical effects and persistent psychological harm, as was the case here.  The rape did not arise from any misunderstanding by the applicant of the nature or meaning of consent.  His victim was compelled to endure his assault, and he well understood that at the time of his offending.  I do not accept the applicant’s submissions to the contrary. 

50.  Rape is clearly a crime that will often result in an affirming of the decision under review.  Indeed, in this case, if the applicant could be safely returned to Iran, I would have affirmed the decision under review.

51.  That is not the case, however.  This applicant will face a further period of immigration detention in circumstances where he has already been detained for some three-and-a-half years and where, for reasons that are not clear to me, his application for internal review took some four-and-a-half years to be processed.  That is a very long period of time.  And I believe it is appropriate to assess the significance of the applicant’s future ongoing detention in the context of the very long period of time he has already spent in detention. 

52.  I do not say that the detention is likely to become quasi-permanent because that would be to impute to the Minister the completely unreasonable intention of keeping the applicant in immigration detention come what may, rather than releasing him into the community if a third-country option cannot be secured. Nevertheless, I cannot be assured that the third-country option will be investigated and finalised in a relatively short timeframe.  There was no indication at the hearing that the question of securing a third country is in the process of being addressed successfully, with an end date for detention in sight.  Clearly enough, given the very lengthy delay to date, the applicant’s case assumes some urgency as he is unable to apply for a further protection visa.  Whilst, as I say, I do not assume the period of detention going forward would be quasi-permanent if I affirmed the decision under review, it is likely in my opinion to be lengthy, and not short.  That is a serious matter.

53.  The plurality in WKMZ referred to liberty as being one of the most basic rights and  fundamental freedoms known to the common law: see paragraph [123] of their reasons. “Indefinite” detention, in the sense in which the plurality used that expression, is a very important matter indeed and must be addressed seriously by the Tribunal.  I also have regard to what I have found to be the low risk of recidivism and the very limited criminal history of this applicant. In fact, the rape conviction is his only recorded conviction although self-evidently it is very serious. 

54.  But a low risk of recidivism is not a zero risk: I accept that fact. That said, I have concluded, on balance and after weighing the stipulated considerations, that the correct or preferable decision on the evidence before me, is to revoke the cancellation decision. 

DECISION

55.  Having reached that conclusion, and returning now to the language of section 501CA(4)(b)(ii), there is, in my opinion, “another reason” for the cancellation decision to be revoked; and 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: 22 November 2022

Dates of hearing:	11 & 13 October 2022
Advocate for the Applicant:	Dr Jason Donnelly
Advocate for the Respondent:	Ms Daphne Jones-Bolla Sparke Helmore Lawyers