Pesamino And Minister for Immigration and Citizenship
[2010] AATA 704
•15 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 704
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/2618
GENERAL ADMINISTRATIVE DIVISION ) Re Dominic Pesamino Applicant
And
Minister for Immigration and Citizenship
Respondent
DECISION
Tribunal Mr G L McDonald, Deputy President Date15 September 2010
PlaceMelbourne
Decision
The decision under review is set aside and a decision directing the re‑issuance of the applicant’s visa is substituted.
…...(sgd. G L McDonald) ........
Deputy President
CATCHWORDS – visa cancellation – substantial criminal record – young offender – dislocation and other issues in moving to australia – serious offences – sentencing judge’s remarks – level of family and professional support – decision set aside.
Migration Act 1958 (Cth), ss 499 (2A), 501 (2), 501 (6) (a), 501 (7) and 501G (1)(f)
Direction No. 41- Visa Refusal and Cancellation Under s 501
R v Pesamino [2009] VCC
REASONS FOR DECISION
15 September 2010 Mr G L McDonald, Deputy President 1. The applicant is seeking the review of a decision of a delegate of the Minister made under s 501(2) of the Migration Act 1958 (the Act), which cancels his class TY Subclass 444 Special Category (Temporary) visa on the grounds that he fails the ‘character test’ as the result of having a ‘substantial criminal record’.
2. The review by the Tribunal is based on documents presented by the parties and on testimony given during the hearing. The applicant was represented by Ms M Milsom, of counsel. One report and a number of statements were supplied on behalf of the applicant and they were admitted as exhibits. Ms Pamela Matthews, a Forensic Pyschologist registered with the Victorian Psychologists Registration Board as a Supervising Psychologist and a member of the Australian Psychological Society College of Forensic Psychologists, provided a report. The applicant provided a statement. Statements were made by the members of his family: his mother, Mrs Seko Pesamino Afualo, and his sisters, Ms Chantelle Louise Afualo and Ms Angel Victorina Afualo. A statement was made by the mother of the applicant’s daughter, Ms Luana Shone. As well a statement was provided by Ms Megan Sarah Chester, who is employed by the Brosnan Centre, a division of Jesuit Social Services. She became his caseworker after he joined the Link Out Program run by the Brosnan Centre. The Tribunal heard from all of these individuals as well, except for Ms Angel Victorina Afualo. Both the parties provided a statement of facts and contentions. The respondent was represented by Mr R Bower. There were no witnesses for the respondent, and the respondent provided the Section 501 ‘G’ Documents (the G Documents) pursuant to the Act as well as the Summons Documents.
The Provisions of the Act and the Ministerial Direction
3. It is not disputed that the applicant fails the character test (as defined in s 501(6)(a) of the Act) as the result of having a substantial criminal record (as defined in s 501(7) of the Act). It is therefore open to the Minister, or in this review, his delegate, to cancel the applicant’s visa.[1] An application to review a decision cancelling a visa can be made to this Tribunal.[2] In considering an application for review, s 499(2A) of the Act requires the Tribunal to apply the terms of Ministerial Direction No. 41 (the Direction) dated 3 June 2009, which deals with visa refusal and cancellation.
[1] Section 501(2) of the Act.
[2] Section 501G(1)(f) of the Act.
4. Clause 9(1) of the Direction requires the Tribunal to take into account the primary considerations, which are relevantly listed in cl. 10 of the Direction as follows:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); …
In assessing the protection of the Australian community, the seriousness and nature of the conduct, and the risk of a repetition, of that conduct must be considered.[3] Of special concern are offences involving violence, including relevantly assault and robbery.[4] The number and nature of the offences, the period between the commission of the offences and the time which has elapsed since the commission of the last offence[5], comments by the sentencing judge[6], and other relevant mitigating factors, are all pertinent to consider[7]. The Tribunal must also consider the applicant’s previous general conduct and the totality of his criminal conduct[8], which extends to a consideration of any evidence of previous breaches of court orders.[9]
[3] Clause 10.1(2).
[4] Clause 10.1.1(2)(d) and (e).
[5] Clause 10.1(3).
[6] Clause 10.1.1(4)(a).
[7] Clause 10.1(4)(b).
[8] Clause 10.1.2(1).
[9] Clause 10.1.2(2).
5. Consideration is to be given to the applicant being a minor when he/she began living in Australia, which is to be accorded less weight in cases when the applicant was close to attaining adulthood.[10] Clause 10.3 of the Direction provides that the longer a person has lived in Australia, the greater that person’s ties are likely to be to the Australian community. Clause 10.4.1 of the Direction provides guidance on factors to be taken into account when considering the interests of any child. The applicant has a child aged two years, who is an Australian citizen. Clause 11 of the Direction sets out other factors, being not primary considerations, which are to be considered. Of relevance for this review, they include: any family ties which may be broken by the applicant’s deportation, the applicant’s age and health, whether the applicant has any links to New Zealand, hardship to the applicant and members of his family, level of education and whether the applicant has previously been warned about the possibility[11].
[10] Clause 10.2.
[11] Clause 11(3).
The Applicant’s Criminal Record
6. (a) On 9 February 2006, the applicant was convicted of theft, robbery, recklessly causing injury and failing to answer bail. He was sentenced to a community based order for 12 months and to undertake 75 hours of community work. He failed to comply and was on 1 September 2006, after conviction for failing to meet the conditions of the community based order, sentenced to four months detention in a youth training centre.
(b) On 12 October 2006 he was convicted in the County Court of Victoria of armed robbery, which conviction also breached his community based order. The armed robbery was of a suburban alcohol outlet, where the applicant threatened the proprietor with an iron bar before stealing some alcohol. He was sentenced to 18 months detention in a youth training centre.
(c) On 15 April 2009 the applicant was sentenced in the Magistrates’ Court of two counts of robbery and one count of theft. Both of the robbery offences were committed on trains at night. The first involved the theft of a mobile telephone and a wallet from a young male victim, who was also assaulted by an associate of the applicant. The second involved the applicant punching another male victim in order to steal the victim’s backpack. He was sentenced to a total of four months imprisonment. On 15 May 2009, the sentences mentioned were set aside by the County Court of Victoria and a sentence of six months imposed for each of the two robberies; the sentences to be served concurrently.
(d) On the same day, the applicant was also convicted of one count of armed robbery and one of intentionally causing injury for which he was sentenced to 32 months imprisonment. The sentencing Judge found the facts to be that the applicant, who was accompanied by four male accomplices, on a train at about 11:00 pm, struck an unsuspecting victim in the mouth with a stick before an accomplice then took the victim’s backpack. The victim, a young man, was a cook on his way home from evening work. The victim incurred what transpired to be a permanent scar to his lip and a broken tooth, which required surgery to repair. The victim also suffers ongoing fear of travelling on public transport. When sentencing, Judge Gamble, remarked:
You employed considerable violence to carry out your aims and deliberately struck your unsuspecting victim in the face, in circumstances that had the potential to cause even more serious injuries than he in fact sustained. It goes without saying that the use of a weapon to intentionally cause injury to a victim’s face is a serious example of the offence of intentionally causing injury.[12]
[12].R v Pesamino, County Court of Victoria, 15 May 2009, G Documents, p 86.
(e) Further convictions of using threatening words in a public place, assaulting police and being drunk in public resulted in further concurrent sentences of imprisonment being imposed on the applicant.
7. These are serious offences against citizens going about their ordinary business that were unprovoked, violent in nature and carried out in cowardly circumstances. As is submitted on behalf of the Minister:
Mr Pesamino has committed violent crimes against vulnerable young people using public transport at night. ...the vicious attacks … are abhorrent to the Australian community and are of particular concern to the Australian community …”[13]
[13] Respondent’s Statement of Facts and Contentions, paragraph 5.10.
It is established on the evidence, and was accepted on the applicant’s behalf, that he failed the character test as the result of his convictions and sentences.
The Applicant’s Personal Circumstances
8. The applicant was born in Samoa on 12 April 1987. He moved with his family to New Zealand when he was 16 years old for several months before the family relocated to Australia on 12 December 2004, at which time the applicant was aged 16½ years old. Despite being born in Samoa and spending his youth there, he became a citizen of New Zealand. If his application to the Tribunal is unsuccessful, he will be returned to New Zealand.
9. The applicant’s parents are his adoptive parents. They have four children of their own, all of whom are younger than the applicant. The applicant’s mother is a cousin of his biological mother. The applicant’s biological mother was 16 years old when the applicant was born. A few weeks after his birth, his biological mother gave the applicant to his adoptive mother and her mother (the applicant’s grandmother) to look after. The applicant’s mother and grandmother thereafter cared for the applicant. The applicant’s biological father has played no part in the applicant’s life.
10. The applicant became particularly attached to his grandmother. His grandmother eventually came to live in Australia, and it was her need for care during an illness which prompted the family to relocate to Australia. The applicant’s grandmother died in 2005. The Tribunal accepts that the applicant, because of his closeness to her, particularly felt the loss of his grandmother.
11. The applicant’s mother seems to have had some ongoing contact with the applicant, but the applicant did not know of his adoption until he was 17 years of age. It is accepted that the applicant’s birth mother sexually assaulted him when he was 16 years of age. It is undesirable to detail the form of the sexual assault. Suffice to say that it must have been traumatic for the applicant upon later discovering the assault was committed by his birth mother.
12. While the applicant was apparently unaware of his adoption, it appears the applicant was bullied by other children at school over this issue. This resulted in him being involved in fights with them. The school bullying was, however, something which, the applicant told the Tribunal, he did not share with his family.
13. The applicant, being the eldest male child, was looked up to by his young siblings and was expected to be compliant with his father’s directions. His mother, Mrs Afualo, said that her husband disciplined him in ‘a positive way’. Both Ms Matthews and Ms Chester, who respectively undertook professional examination of and provided assistance to the applicant, referred to the father’s disciplining as being violent. Ms Matthews explained that what was accepted as normal conduct in disciplining children in Samoa would be regarded as child abuse in Australia. The Tribunal accepts that different cultural experiences may lead to confusion, particularly for some young people.
14. After arriving in Australia, the applicant learnt of his birth circumstances and said that he felt let down by his family (presumably for not divulging this to him earlier), and that this broke the bond existing between he and his family. This combined with the instability associated with moving first to New Zealand and then shortly onto Australia, along with the loss of his grandmother, caused him to leave home and effectively cut the ties with his family. He became a ‘street kid’, that is, homeless, without employment, income, family or other positive support, and without much purpose or hope about his future. He told the Tribunal that at the time he committed the offences against the young train passengers, described earlier in these reasons, he was not thinking about the victim, but he was motivated to obtain food, clothing and shoes for himself.
15. The applicant told the Tribunal that, as the eldest child in the family, he had been spoilt. He said he was anxious about coming to live in Australia, where life was lived at much faster pace than he was used to in Samoa. The applicant said after leaving home in 2005, he became caught up in ‘the wrong crowd’.
16. During his last term of imprisonment, the applicant said had done a lot of thinking and had come to the realisation that he had lost his family, his daughter, Aroha, and his freedom. He was disappointed in himself and expressed remorse for the harm he had inflicted on the victims of his crimes, stating that he wished to apologise to them. The applicant told the Tribunal that he had completed courses in anger management, and in drug and alcohol abuse, and he has partly completed a parenting course while in prison. He expressed a willingness to accept help in his rehabilitation and to undertake further courses of a similar nature upon his release.
17. Ms Matthews, who the Tribunal accepts is an experienced forensic and clinical psychologist with experience in assessing young offenders, examined the applicant over a two hour period. Both in the report she prepared[14] and in her oral evidence before the Tribunal, she exhibited a great deal of professional acumen. The Tribunal was considerably assisted by her forthright and balanced approach. Ms Matthews opined that the applicant, even although now aged 23 years, was still in the adolescent stage of his development. He continued to suffer adolescent depression into his twenties, which was manifested by him undertaking sometimes violent anti-social behaviour and making (excessive) use of alcohol and drugs. His depression typically encompassed some adult symptoms, such as an attempt to kill himself. Ms Matthews said that the applicant would need ongoing professional treatment to overcome his depression.
[14] Exhibit A2.
18. The treatment for his depression was not limited to him taking medication, but it required continuity of support both from his family and externally from youth workers in learning to face up to the issues confronting him. Ms Matthews endorsed external assistance, such as that offered through the Brosnan Centre, which engaged experienced youth workers and had access to a clinical psychologist, as being very good and appropriate for the applicant. If permitted to stay in Australia, the applicant would have the support of the parole authorities for approximately a 10 month period, while the Brosnan Centre offers a period of 12 months support through its Link Out Program. On going support could be expected from the applicant’s family.
19. Ms Matthews supported by Ms Chester, the latter being a qualified social worker with four years experience as a youth worker, detected a recent (that is, since May 2010) change in the attitude of the applicant. It was their opinion that he had reached a real determination to abandon his previous wayward lifestyle. Ms Matthews also stated that as the applicant got older, he was likely to further mature and become more responsible.
20. Part of that positive decision making evolved as the result of him becoming a father of his daughter, Aroha, born 2 March 2008. Aroha is an Australian citizen. Aroha’s mother, Ms Luana Shone, provided a statement and gave oral evidence before the Tribunal. While she told the Tribunal that there was no prospect of her re‑establishing a relationship with the applicant, she was desirous of him accepting a fatherhood role in relation to Aroha. There had been a gap in contact from shortly after Aroha’s birth to more recently when contact had been resumed directly with the applicant as well as between Ms Shone and the applicant’s mother. Ms Shone told the Tribunal that the contact had been positive. Ms Chester told the Tribunal that when the applicant was discussing issues relating to Aroha that he had exhibited a very positive attitude.
21. The applicant’s reconnection to Aroha has coincided with him reconnecting, through the efforts of Ms Chester, with his family. The Tribunal is satisfied, after reading their statements and hearing from Chantelle Afualo, the applicant’s eldest sibling, to accept the applicant’s statement that, despite the break in relationships in the period immediately post-2005, he and his family have resumed a close relationship. Ms Matthews told the Tribunal that now that his siblings were growing up, that they would be likely to exercise greater constraint on the applicant if he was motivated to misbehave than had been the case when he left the family in 2005.
22. The applicant’s mother, Mrs Afualo, was described by Ms Chester, as a woman who exhibited considerable strength of character and who would be likely to be able to influence the applicant in keeping his commitment to a changed and better lifestyle. Mrs Afualo confirmed to the Tribunal that the applicant found it difficult to adjust after arriving in Australia and that he fell in with the wrong group of friends. She was confident that the applicant was now motivated to mend his ways, and that she and her family were willing to, and would, strongly support him in achieving this. Mrs Afualo is a very impressive woman, who clearly exhibited both great concern for the applicant and great joy that he had reconnected with his family. The Tribunal is satisfied that Mrs Afualo is able to offer the applicant stable emotional assistance and positive encouragement, provided that the applicant is willing to accept what she, backed by the rest of the family, offers.
23. Mrs Afualo expressed the hope that, if permitted to stay in Australia, the applicant would live at home and that she supported him attending alcohol and drug counselling. Ms Chester outlined four month and six month alcohol and drug rehabilitation facilities, which the applicant could attend. She said that the applicant had responded positively to the suggestion. The Tribunal notes that the applicant has successfully attended alcohol and drug, and anger management, courses, and he is part way through a parenting course during his time in prison.
24. It was Ms Chester’s evidence that, if permitted to stay in Australia, the applicant would, if permitted by the parole board, be liable to spend approximately 10 months in the adult parole program. She stated that to complete this parole successfully is a considerable challenge, particularly for a young man. The requirement of attending the parole office and discussing progress twice a week, with the usual requirement to undertake community work, was generally found to be onerous.
25. In his sentencing remarks in respect of the applicant’s last group of offences, Judge Gamble both acknowledged the personal difficulties the applicant had faced and expressed some hope concerning the applicant’s rehabilitation when he stated that:
It is a most unfortunate background indeed. You have had no contact with your biological father, and limited contact with your biological mother, which ended when she sexually assaulted you when you were 16 years of age. You lived with a Samoan born foster family from the time you were ten months of age. You did not enjoy living with that family and did not feel loved or a part of it. You were physically abused by your foster-father, and always felt that your foster-parents favoured their biological children.
The contact you had with your biological mother whiles still living in Samoa, was a confusing and hurtful experience for you. You had initially been led to believe that she was an aunt, but learnt that she was in fact your mother, and working as a prostitute as a result of what you were told by a group of young men who confronted and assaulted you and told you the truth, at a local shop you had attended in the company of your mother.
While the details of the sexual assault have not been outlined to this court, it was in an incident that appears to have affected you deeply, and with which you have yet to come to terms. I have been told that it was shortly after that incident that you travelled to Australia via New Zealand, with your foster family. You were not happy living in that family however, and with 12 months of your arrival in Australia you left, and have had no contact with them since.
From that time therefore, you have effectively been without any parental guidance or support whatsoever. You spent some time in Queensland before returning to Melbourne. You led what appear to have been a fairly aimless existence, and abused both alcohol and drugs, in a context where you were mixing with other like minded youths. All of your offending, both past and present, appears to have occurred in that context.
You have had a very limited work history since you have left school when aged 17 in Samoa. You continue to have literacy problems and are, according to Mr Cummins, functioning in the middle of the below average range in terms of intellectual functioning. I have found the report of Mr Cummins very helpful. His conclusions – that you are a very socially isolated young man, who harbours considerable resentment, hurt and anger as a result of the history involving your biological parents, and your foster family – are entirely understandable.
You felt rejected by them and by society in general. Your inability to properly deal with those feelings of rejection have led to acts of aggression by you, which have continued even while you have been in custody on remand for these offences. Your candid revelations to Mr Cummins of that fact, and your expressed willingness and preparedness to receive professional assistance for anger management, and your drug and alcohol abuse, appears to be a positive step in what will no doubt be a difficult road ahead in your attempts to rehabilitate yourself.
You have not found your time on remand easy, and have been agitated, and have had trouble sleeping. In Mr Cummins’ opinion, you are struggling to take responsibility for your life and offending behaviour. You present as at least moderately anxious, agitated, and at least moderately depressed. In his opinion, you present as an emotionally traumatised and hurt youth/young adult.
You have also reported and displayed symptoms of an anti-social personality disorder and a conduct disorder adolescent onset. In Mr Cummins’ view you would benefit from anti-depressant medication, psychological treatment and close supervision upon your release from custody.[15]
and,
It is neither in your interest or in the interest of the community to impose a crushing sentence on you that would extinguish the spark of interest in your own reformation which you demonstrated to Mr Cummins. I agree with Mr Cummins’ assessment, that any assessment of your prospect for rehabilitation must be guarded and must be done with some caution.
However, I accept that if you were placed in supported accommodation on your release from goal, and are provided with, and openly participate in professional counselling directed at dealing with your underlying feelings of anger and frustration, and with your tendency to use and abuse alcohol and drugs, your prospects of rehabilitation would be considerably improved, and in my view, relatively good.[16]
[15] R v Pesamino, G Documents, pages 83-85.
[16] R v Pesamino, G Documents, pages 87-88.
Consideration
26. The Tribunal also acknowledges that a real risk to the safety of the Australian community exits from permitting the applicant to remain and that, as the Direction requires, this must constitute a primary consideration. The violence that the applicant has engaged in is unacceptable and is ‘serious’ for the purposes of cl 10.1(2) of the Direction. The Tribunal acknowledges wide public concern about the need to ensure a public transport system free of violence. The applicant has given undertakings before the commission of the offences, for which he is currently serving sentences of imprisonment that he would not re-engage in similar conduct yet he has done so. His criminal record, having regard to the number, and similarity, of the offences and the short-time frame between his release from incarceration and the commission of further offences, is very poor. The only conclusion open is that there remains a risk that the applicant may commit further offences.
27. While the applicant was a minor when he entered Australia, he was soon to reach his statutory age of majority. Accordingly not much weight can be given to the primary consideration, which requires consideration of whether the person was a minor when he/she entered Australia.[17] That the applicant was not long in Australia when he began to commit offences is not a primary consideration which operates in his favour.
[17] Clause 10(1)(b).
28. It is easy to be cynical and believe that those who are desirous of staying in Australia will engage, or undertake to engage, in any program which may advance their chances. It would also be easy to be cynical and conclude that the applicant had re-united with his family, including through Ms Shone with his daughter, Aroha, in order to secure a positive decision with respect to his visa. There are circumstances when such cynicism is justified. However, the Tribunal is satisfied that this is not such a case. The Tribunal is satisfied from the evidence of Ms Shone, Mrs Afualo, Ms Chester and the applicant that he genuinely seeks to have a paternal relationship with Aroha. It is a primary consideration in relation to Aroha for her not to be deprived of the opportunity for this to occur.
29. The Tribunal is satisfied that members of the applicant’s family are genuine in their demonstration of affection and support, which they are extending to him. While the applicant has an uncle in New Zealand, it was Mrs Afualo’s evidence he would be unlikely to be able to extend much assistance to the applicant. The applicant would lose the positive support offered through his more immediate family, the Parole Board supervision and the Brosnan Centre if he was returned to New Zealand. The Tribunal also accepts that while New Zealand is not a great distance away from Australia, the family’s financial circumstances are such that it would be difficult for them to visit the applicant on a regular basis.
30. That Judge Gamble accepted both the difficulties faced by the applicant after his arrival in Australia and expressed the view that, with support, the applicant’s chances of rehabilitation should be considered ’relatively good’ is a positive factor in considering the applicant’s future. The Tribunal accepts that the applicant is genuine in his willingness to accept professional assistance and that such assistance can be provided to him through the Brosnan Centre with Ms Chester’s assistance.
31. Further, and importantly, according to Ms Matthews, the withdrawal of support, which would occur if the applicant was deported to New Zealand, is likely to exacerbate his depression and may even lead to further suicide attempts. While the applicant’s health, extending to his physical and mental well being, is not a primary consideration it is a significant matter of concern which weighs towards permitting him to retain his visa. Ms Matthews stated in her report that the applicant “has good potential for rehabilitation with greatly reduced risk of re-offending” if he receives treatment for his depression (including “counselling under a Medicare Mental Health Plan”), ongoing treatment for his substance abuse and support from the Brosnan Centre and his family. In the terms of cl 11 (3)(i)(A) of the Direction, this support is available in Australia, but it is uncertain that such services would be available in New Zealand and the depth of family support would clearly not be as great.
32. The Tribunal has also taken into account the close relationship between the applicant and his immediate family. His mother, father and four younger siblings would effectively be deprived of his company were he to be returned to New Zealand. The permanent physical separation of what the Tribunal accepts is a close family unit is disadvantageous not only to the applicant but the source of concern and sadness to the other members of the family. While not a matter of primary concern, family estrangement is recognised in the Direction as a consideration[18].
[18] Clause 11 (3)(a)(i).
33. The applicant told the Tribunal that he wanted to avoid the adverse influence of his former associates by being employed. He wants to learn a building trade. His mother told the Tribunal that his father who is a builder could teach him bricklaying. He having such a skill would make a positive contribution to the Australian community, the factor stated in cl 11 (3)(f)(ii) of the Direction.
34. The last of the ‘other considerations’ is whether the applicant has been formerly advised in the past by an officer of the Department of Immigration and Citizenship about conduct that brings him/her within the deportation provisions of the Act[19]. There is nothing which suggests that the applicant’s previous criminal conduct resulted in him receiving a warning that he stood to be deported. The Tribunal is satisfied that he had not received any such warning.
[19] Clause 11 (3)(g).
35. The Tribunal readily acknowledges that the applicant faces a serious challenge to achieve what will be a radical change in the type of behaviour that he has exhibited almost since the outset of his arriving in Australia. The Tribunal is, however, satisfied that the hurdles standing in the applicant’s way of achieving success are not insurmountable for him, particularly given the confluence of circumstances which led to him getting into trouble, his current expressed change in attitude, the birth of his child and the reinstated support of his family.
36. Any decision in a case such as this involves the decision maker reaching a balance between often conflicting factors. As stated earlier, a decision maker ought not to undertake the task with cynicism nor should he/she consider an applicant’s criminal past through rose-tinted glasses. Risk to the safety of the community, as the Direction rightly states, is a primary factor and must be accorded real consideration when weighed against the factors - both primary and secondary - favourable to an applicant. In the instant case, after careful consideration, the Tribunal is satisfied that the very real risk to the safety of the Australian community is outweighed by the factors favouring permitting him to retain his visa.
37. For the reasons expressed the decision under review is set aside and a decision directing the re-issuance of the applicant’s visa is substituted.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr G L McDonald, Deputy President
Signed: ......(sgd D De Andrade).................
D De Andrade, Personal Assistant
Date of Hearing 9 September 2010
Date of Decision 15 September 2010
Counsel for the Applicant (pro bono) Ms M Milsom
Solicitor for the Applicant (pro bono) Russell Kennedy Pty Ltd
Solicitor for the Respondent Mr R Bower, Clayton Utz, Canberra
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