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

[2023] AATA 2192

MPZB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2192 (24 July 2023)

Division:GENERAL DIVISION

File Number(s):      2023/2997

Re:MPZB

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:24 July 2023

Place:Sydney

The reviewable decision of 27 April 2023, not to revoke the mandatory cancellation of the Applicant’s visa is set aside, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked. 

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

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where Applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 99 – Protection of the Australian community – whether the Applicant committed family violence – links to the Australian community – the best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – reviewable decision set aside

LEGISLATION

Migration Act 1958 (Cth) s499, 501

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

24 July 2023

BACKGROUND

1. I note the Respondent’s statement of facts, issues and contentions contains a helpful factual summary of this matter, much of which is replicated below.

2. The Applicant is a citizen of Iraq born January 1971. He arrived in Australia in November 1999.

3. In January 2003, the Applicant was found guilty of ‘have false instrument with intent to use’ and ‘use copy of false instrument with intent’ in the Sutherland Local Court.

4. Between 2003 and 2005, the Applicant was found guilty of driving and dishonesty offences.

5. In August 2005, the Applicant was found to be a person to whom Australia owes protection obligations under the Refugee Convention.

6. In June 2007, the Applicant was convicted of 3 counts of ‘obtain money etc by deception’ and one count of ‘use false identity to obtain a valuable thing by deception’, and sentenced to a term of imprisonment of 44 months, concluding in December 2009.

7. In August 2011, the Applicant was convicted of ‘armed with intent to commit indictable offence’, and sentenced to a term of imprisonment of 18 months, concluding in September 2012.

8. In January 2013, the Applicant was found guilty of ‘contravene prohibition/restriction in AVO (domestic)’.

9. In 2013 and 2014, the Applicant was guilty of multiple driving offences.

10. In 2018 and 2019, the Applicant was convicted of multiple larceny offences, ‘fail to appear in accordance with bail acknowledge’ and ‘three or more people use violence to cause fear’. In May 2019, the Applicant was sentenced to 7 months imprisonment served by intensive correction order.

11. In September 2021, the Applicant was convicted of ‘demand property by force in company with intent to steal’, for which he was sentenced to 12 months imprisonment to be served by intensive correction order.

12. In March 2022, the Applicant’s intensive correction order was revoked following being charged with several offences relating to drug possession and possession of suspected stolen goods.

13. On 22 March 2022, the Applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth).

14. On 28 March 2022, the Applicant requested revocation of the mandatory cancellation of the visa and made representations to the Department of Home Affairs.

15. On 27 April 2023, the delegate decided not to revoke the mandatory cancellation decision.

16. On 3 May 2023, the Applicant applied to the Administrative Appeals Tribunal for review of the decision not to revoke the mandatory cancellation decision.

    LAW

17. The relevant legislation and policy is outlined below.

18. Section 501CA(4) of the Act states:

    (4) The Minister may revoke the original decision if:

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

    (b) the Minister is satisfied:

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

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

19. In exercising the power under s 501CA(4) of the Act, the Tribunal must comply with Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).

20. On 23 January 2023 the Minister made Direction 99 pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 3 March 2023.

21. Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:

    1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

    4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time

    a non-citizen has spent in the Australian community, particularly in their formative years.

    6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

22. Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.

23. Section 8 of the Direction provides that the five primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

    (b)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

    (c)The strength, nature and duration of ties to Australia (Primary Consideration 3);

    (d)The best interests of minor children in Australia (Primary Consideration 4); and

    (e)Expectations of the Australian community (Primary Consideration 5).

24. Section 9 of the Directions provides that the four other considerations which must be taken into account where relevant are:

    (a)Legal consequences of the decision;

    (b)Extent of impediments if removed;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

    ISSUE

25. As it is accepted by both parties that the Applicant does not pass the character test as defined in section 501(7)(c) of the Act, the issue for determination is whether there is ‘another reason’ why the decision the cancel the Applicant’s visa should be revoked pursuant to section 501(CA)(4) of the Act.

    EVIDENCE OF APPLICANT

26. The Applicant affirmed his statements of 7 June 2023 and 12 July 2023.

27. He said that he was born in southern Iraq and that he was a member of a tribe, which was persecuted by Saddam Hussein. He said his father had died when he was very young, having been executed in front of all of the family. The Applicant also suffered torture at the hands of the Government. He taken into detention, beaten and intimidated.

28. Prior to coming to Australia he had married in Iraq and had a family of 2 boys and 1 girl. He arrived in Australia in 1999 with the intention of bringing his family to Australia. He received a protection visa. His wife and children remained in Iraq where his wife was said to have died as a result of a car bomb. His son was also said to have died in a separate car bomb.

29. The Applicant met his second wife in 2001 and married her in 2008. They had two children together, SA, born in 2009 and SH, born in 2010.

30. He said that the family was very close, and that he had been very involved in the children’s daily lives while they very young.

31. The Applicant said that he had made many mistakes, but that if he was out of detention he would try to find a house and be the number one carer for the children. The Applicant said he does not want his children to go through what he has been through. He said the children need special care, and in particular, that they need a strong presence in their lives. There would be a very deleterious effect on the children if he were to be indefinitely detained.

32. He said that the children really loved their mother, and that there would be no life for them without a parent.

33. His wife had become ill with leukemia in 2020, and her death and illness had had a very serious effect on SA and SH who had been consumed by grief. The children were now living with the Applicant’s mother-in-law, who had ongoing health problems.

34. The Applicant said that he started to drink alcohol early, and that he started using drugs whilst in jail in 2006/07 in order to ‘help him cope/forget’.

35. He said that when his wife died, he realised he had to ‘fix’ himself in order to be able to care for the children.

36. He entered a rehabilitation program in August 2022, and said that he now feels completely different and is able to make decisions and take responsibility for his actions.

37. He expressed considerable remorse for his offending and said that if released, he would never again take drugs, that he would continue on the methadone program and that he would seek medical and psychological assistance.

38. He said that if he were to remain in detention he would feel ‘broken’ and that his children would have lost their lives.

39. The Applicant was questioned about a previous consultation with a Dr Borenstein in July 2021, which he said he did not recall.

40. The Applicant was also extensively questioned about alleged family violence, which was based on police records. The Applicant strongly denied any family violence, although he did acknowledge that his mother-in-law took out an AVO against him which he had breached, and admitted to breaking some furniture.

41. The Applicant said he had never been separated from his wife, except when she was sick. When referred to a corrective services report where the Applicant was said to have told the authorities that he had separated from his wife, the Applicant said that he had not made such a statement.

42. When questioned as to what his children were doing, the Applicant admitted that he had limited knowledge about their schools.

43. The Applicant was questioned extensively about an altercation with the driver of another vehicle, who had hit him in the head with a carjack. The Applicant said he was unwell at the time, and that he had responded to the attack by using a screwdriver against the other person. He denied that he was responsible for the violence.

44. The Applicant was also questioned about his time in detention. He said he had used drugs in jail and when on parole, but there was conflicting evidence as to whether he had used drugs while in detention. He confirmed he had not used drugs since being on the methadone program.

45. The Applicant confirmed that he had not had any regular employment since he had arrived in Australia. He said he had only worked casually.

46. The Applicant acknowledged that he had been warned by the Department about the potential cancellation of his visa in 2009 and 2011.

    EVIDENCE OF AM

47. AM affirmed her statement of 27 June 2023.

48. She had first met the Applicant when she was 17, and was introduced to him by her sister, who subsequently married the Applicant.

49. AM has four children and is pregnant with her fifth child, who she said were very close to the Applicant’s children, SA and SH, and that the children had lived with her for approximately 8 months. She gave evidence that the Applicant’s children were very close to him and regularly had long conversations with him. They also enjoy time they spend with the Applicant.

50. She said that the Applicant had never taken drugs in front of his children.

51. AM said that SA was a very complicated boy, in need of love and attention. She said he gets angry quickly and that the prospect of not seeing his dad anymore is affecting him.

52. She said that the Applicant helps SA deal with his issues.

53. Both of the Applicant’s children were said to be in counselling, trying to deal with the loss of their mother. She said the children were ‘on their own’ at the moment, and that her mother is not able to look after them in the longer term.

54. AM said that the Applicant had a very good relationship with her own children, and that he was important in their lives, particularly AB, who has a major heart condition. She said the children would all be very upset if they were no longer able to see their uncle and that it would particularly affect AB.

55. AM said that she did not think that her mother would be able to take care of SA and SH over the long term due to her own health issues.

    EVIDENCE OF DR WATSON-MUNRO

56. Mr Watson-Munro is a consultant psychiatrist with very significant qualifications and long-term experience.

57. He said that the Applicant had experienced a highly traumatic childhood with significant loss, trauma and instability. His education was very limited.

58. The Applicant was said to have a major depressive disorder, a high level of anxiety, as well as substance abuse disorder.

59. The Applicant was being medicated for his mental health issues, and also treated with methadone for substance abuse.

60. The Applicant had first been married in Iraq, and had children in the middle east but had lost any contact with them.

61. The death of the Applicant’s wife added significantly to his trauma. The Applicant also suffered considerable anxiety as a result of uncertainty as to his future.

62. Mr Watson-Munro felt that the Applicant could be more broadly diagnosed as suffering from PTSD.

63. The Applicant was said to be suffering from grief and a sense of guilty over the death of his wife. He said that the death of his wife had given him the motivation to give up drugs in order to be able to take care of the children. The Applicant had made a ‘deathbed’ promise to his wife that he would do so.

64. Mr Watson-Munro said that the Applicant’s drug use and offending were interrelated. Drug use had been a form of self-medication to assist the Applicant to deal with trauma but using drugs ultimately did not help him.

65. The positives of the Applicant giving up drugs were said to be greater insight, thinking more clearly, and thinking about the future. The Applicant however, still remained depressed and anxious, and clearly requires ongoing treatment. He was motivated to have long term treatment which he clearly needs.

66. The Applicant had not received any effective treatment in the past.

67. Mr Watson-Munro felt that in addition to his medication for mental health the Applicant also needed social skills training and assistance in dealing with PTSD. He needed ongoing consultation with an experience, well qualified psychologist working in conjunction with a medical practitioner who could prescribe the appropriate medication.

68. Mr Watson-Munro felt there were a number of protective factors which would assist in relation to the Applicant re-offending including the need for the Applicant to care for his children and ‘criminal burnout’, which refers to an observation by Mr Watson-Munro that people over 50 tended to want to let go of their criminal behaviours, enlivened by the prospect of enjoying the rest of their lives. The Applicant had limited family support.

69. In relation to the risk of re-offending, Mr Watson-Munro thought that it was high, particularly in light of the Applicant’s significant history, but that the risk would decrease with the effluxion of time and appropriate treatment, so that it would ultimately move to ‘moderate to low’, provided that the Applicant remained drug free.

70. If the Applicant were to remain in detention, Mr Watson-Munro felt that his depression and anxiety would escalate, particularly as he would be very concerned about the future of his children, and fretting about them. He was also at risk of self-harm.

71. Mr Watson-Munro felt that the Applicant’s desperate desire to be a good father was a very powerful motivating factor.

72. Counsel for the Respondent questioned Mr Watson-Munro about what tests he had used in order to assess the Applicant’s level of risk. Mr Watson-Munro said that the tests regularly used in this area were inappropriate for this Applicant, given a number of factors including language difficulty and the fact that those tests focused on static factors. Instead Mr Watson-Munro had relied on his extensive experience and clinical skills.

    DECISION

73. In considering this matter the Tribunal must have regard to direction 99

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY:

74. In considering this primary consideration, I have had regard to paragraph 8.1 of direction 99. There are two limbs to this consideration:

    (e)The nature and seriousness of the conduct of the non-citizen; and

    (f)The risk to the Australian community should the non-citizen re-offend.

    Nature and seriousness of the offending:

75. The Applicant began his offending approximately 4 years after arriving in Australia at the age of 28.

76. Most of his offending was committed whilst he was under the influence of drugs. I accept his evidence that the motivator for his offending was to try to get money for his drug habit.

77. The most serious offence was committed in 2006, and he was convicted for ‘Obtain money etc by deception’ and ‘use false identity to obtain a valuable thing by deception’. He received a term of imprisonment for 44 months.

78. In relation to violent conduct, the Applicant was involved in an altercation with the driver of another car, who the Applicant said had racially vilified himself and his family. The Applicant had attempted to use a screwdriver to stab the driver of the other car.

1. In 2011, the Applicant was sentenced a term of imprisonment of 18 months for the offence of ‘armed with intent to commit indictable offence’.

2. The Applicant was also convicted in 2019 of ‘3 or more people use violence to case fear’ and sentenced to 7 months imprisonment, and in 2021 convicted of ‘demand property by force in company with intend to steal and sentenced to 12 months imprisonment.  

3. Many of the Applicant’s other offences related to driving, and in particular driving without a licence, and drug possession.

4. Given that a number of the Applicant’s offences involved violence against other members of the community, and in the case of the driving offences, a disregard for Australian law, his offending must be taken seriously, especially as it extends over a very long period of time, although there was no suggestion of increasing seriousness.

   Risk to the Australian community should the Applicant re-offend:

5. In looking in this consideration I note the provisions of clause 8.1.2 of direction 99.

6. There is, in my view, serious risk to the Australian community if the Applicant were to re-offend, given that some of his offences involved acts of violence against innocent third parties.

7. I accept the Applicant’s evidence that most of the offending occurred whilst he was under the influence of drugs and alcohol.

8. I place considerable weight on the evidence Mr Watson-Munro, consultant psychologist. Mr Watson-Munro well considered and very helpful evidence to the Tribunal.

9. Mr Watson-Munro referred to the Applicant’s childhood trauma and the stress that he had suffered from the loss of his family members in Iraq. He diagnosed the Applicant with depressive disorder, substance abuse disorder, high levels of anxiety, and PTSD. He said that in the past the Applicant had self-medicated with drugs and alcohol in order to forget the events of the past. This was consistent with the evidence of the Applicant, who said that he had used drugs ‘to help him cope and to forget’. The Applicant was said to still be in grief from the death of his wife.

10. Mr Watson-Munro gave evidence that the Applicant was now being treated appropriately with psychotropic medications to deal with his mental health issues. He was also in the methadone program and had been drug free since August 2022, although there was some evidence that the Applicant may have used ‘Ice’ while on the methadone program.

11. I accept that the Applicant was very determined to get onto the methadone program, and that he had a very strong motivation to cease using drugs and alcohol after the death of his second wife, and his deathbed promise to her that he would look after the children. In fact, the evidence was that the Applicant’s wife’s final words to the Applicant were ‘I leave the kids with you…. I feel safe’ as she knew that the Applicant would care for their children.

12. Dr Watson-Munro thought that there were some primary protective factors against the Applicant re-offending. The most important being his desire to care for his children. Family support will be important.

13. He said that the Applicant clearly needed ongoing treatment for his mental health issues and that keeping up with this treatment would be very important.

14. Mr Watson-Munro also referred to ‘criminal burnout’, an observation that once people reach about 50 years of age they tended to want to abandon their criminal behaviours and move on to the next stage of their lives.

15. The Applicant’s risk of re-offending was said to be high/moderate but decreasing with the effluxion of time and with the appropriate treatment, Mr Watson-Munro saw the risk as moving towards moderate/low.

16. It was essential that the Applicant remain drug and alcohol free.

17. The Respondent drew the Tribunal’s attention to the fact that the Applicant had seen other psychologists in the past, and had attempted rehabilitation but had not succeeded. I do not place a lot of weight on this evidence as it is not unusual for drug addicts to make a number of attempts at rehabilitation before being able to give up their habit, and in particular, the Applicant currently has a very strong motivation based on what I accept is a genuine desire to care for his children.

18. Overall, I regard the risk of re-offending as moderate to high, particularly as the Applicant’s has not had a long period of treatment or abstinence from drugs.

19. In light of the above I give this consideration heavy weight in favour of non-revocation.

    PRIMARY CONSIDERATION 2- FAMILY VIOLENCE:

20. The Applicant has not been convicted of family violence offences, other than for breach of an AVO taken out by his mother in law.

21. The Respondent submitted that the Tribunal should take into account police reports in relation to family violence the Applicant had inflicted on his wife, and the wife’s alleged evidence to the police in 2012 in relation to family violence.

22. It is not possible for the Tribunal to place a lot of weight on uncorroborated statements, even when those statements are given to the police.

23. I accept however that there may have been some troubling incidents between the Applicant and his wife, which may have caused her fear to him.

24. In light of the nature of the evidence, I give this consideration low weight in favour of non-revocation.

    PRIMARY CONSIDERATION 3 – THE STRENGTH, NATURE, AND DURATION OF TIES TO AUSTRALIA:

25. The Applicant has lived in Australia for almost half of his life.

26. Any connections he has are in Australia, in particular, his children, who are Australian citizens.

27. The Applicant gave evidence that he had lost contact with the children of his first marriage, who remained in Iraq.

28. He did not appear to have contact with family or friends or indeed any third party in Iraq.

29. The Applicant has relatives in Australia, including AM, who gave evidence on his behalf and expressed strong support for him.

30. The Applicant has no real work history in Australia, and his evidence was that he had only had casual employment from time to time.

31. There was no evidence to indicate that the Applicant was a member of any social groups, nor that he has significant friendship circles in Australia, outside of his immediate family.

32. I place significant weight on the fact that the Applicant’s children have lost their mother and that he is a very important figure in the life of both of his children.

33. He also has strong ties with AM’s children, one of whom is particularly close to the Applicant and suffers from significant health issues.

34. Overall, I give consideration heavy weight in favour of revocation.

    PRIMARY CONSIDERATION 4 – THE BEST INTERESTS OF MINOR CHILDREN:

35. The Applicant gave evidence that he had played a significant role in the early lives of both of his children, including bathing the children, changing nappies, and otherwise assisting his wife.

36. All of the evidence was that he has a strong, ongoing relationship with both of his children who really need his presence.

37. Both children were deeply affected by the death of their mother and have not yet finished grieving. Both children are receiving counselling.

38. AM described SA as ‘a very complicated boy’, who was in need of love and attention. She said that not seeing his dad anymore had had a very significant effect on him.

39. AM said that although the children were being looked after by her mother, that could not continue due to her mother’s age and health.

40. AM expressed deep concern for the welfare of the Applicant’s children if they were not able to be with him. It is also of considerable weight that the Applicant’s wife, at the time of her death, considered it important that the Applicant take care of the children. There is no suggestion other than, she considered such a course to be in their best interests.

41. She also said that if the Applicant were to be detained it would have an adverse effect on her own children, particularly AB, who was 8 years old and close to the Applicant.

42. Overall, I give this consideration very heavy weight in favour of revocation of the delegate’s decision.

    EXPECTATIONS:

43. Direction 99 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are set out in direction at paragraph 8.5.

44. In determining the weight to be given to this consideration, I take into account, in particular, the compassion that the community would have for the Applicant’s children, who have lost their mother and could potentially, for all practical purposes, lose their father.

45. Both children need the presence of their father in their lives, and even though the father may have limitations, his ongoing presence in their lives is clearly significant.

46. I give his consideration moderate weight in favour of non-revocation.

    OTHER CONSIDERATIONS:

    LEGAL CONSEQUENCES OF DECISION:

47. The Applicant faces the prospect of indefinite detention. This was accepted by counsel for both parties.

48. Mr Watson-Munro gave very clear evidence that if the Applicant were to be placed in indefinite detention this would have a very serious effect on his mental health. He said that his depression and anxiety would escalate and that he would fret over the welfare of his children. Particularly as he is desperate to be a good father to the children.

49. In summary Mr Watson-Munro said that there would be a definite and ongoing deterioration in the Applicant’s mental health, the Applicant was also at risk of self-harm.

50. Neither party held out any real hope, in the event of an adverse decision, of the Applicant being released in the short to medium term.

51. I give this consideration very heavy weight in favour of revocation.

52. There are no other considerations which are relevant to the decision, particularly as it is accepted that Australia has protection obligations towards the Applicant and that he cannot be removed from Australia.

    CONCLUSION:

53. At the hearing and, in particular during final submissions, it was put the Tribunal, on behalf of the Respondent, that the Applicant lacked credibility and that therefore his evidence on a number of topics should not be accepted. Accordingly, his evidence in certain important respects, including the nature of his offending, his commitment to rehabilitation, and his relationship with his children, should not be accepted.

54. It could not be said that the Applicant was a clear, concise, and coherent witness, I do not find enough evidence to make adverse findings as to his credibility. It is not surprising that victims of trauma, and people with ongoing mental illness can have difficulty remembering various events, particularly in the absence of material to assist them with their recollection. Further, in the case of the current Applicant, English is his second language and although he appears to have a reasonable grasp of the language he clearly struggles with more technical issues.

55. In summary, although I find the Applicant was, in many regards, an unsatisfactory witness I do not find his evidence, taken overall, lacked credibility. In particular, his evidence in relation to his commitment to taking care of the children was clear and compelling. It was never successfully challenged.

56. In weighing up all of the relevant factors I am the view that the balance lies in favour of revocation of the delegates decision.

57. Had it not been for the singular circumstances of his children, and the need for them to have a parent available to them, the Tribunal’s decision would likely have been different.

58. Accordingly, the reviewable decision of 27 April 2023, not to revoke the mandatory cancellation of the Applicant’s visa is set aside, and in substitution it is decided that the mandatory cancellation of the Applicant’s visa is revoked. 

I certify that the preceding 136 (one hundred and thirty -six) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

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

Associate

Dated: 24 July 2023

Date(s) of hearing:	17 & 18 July 2023
Counsel for the Applicant:	Ms Hannah Ryan
Solicitors for the Applicant:	Ms Jessica Schulman
Solicitors for the Respondent:	Mr Max Gao