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

[2022] AATA 2873

RSCD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2873 (4 August 2022)

Division:GENERAL DIVISION

File Number(s):      2022/3959

Re:RSCD  

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:4 August 2022

Date of written reasons:        2 September 2022

Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the Applicant’s visa be revoked.

...........................[sgnd]......................................

Senior Member Dr N A Manetta

MIGRATION – mandatory cancellation of visa – applicant guilty of uncharacteristic outburst of extreme violence towards wife – serious assault punished by lengthy term of imprisonment – genuine remorse – all primary considerations pointing to affirming decision under review – other considerations – unusual psychological background to offending – not normal case of family violence – commitment to obtaining appropriate treatment – decision set aside in highly unusual circumstances

Legislation

Migration Act 1958 (Cth)

Cases

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2119

Secondary Materials

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

REASONS FOR DECISION

Senior Member Dr N A Manetta

2 September 2022

1. After I delivered a simplified version of my oral reasons through a Chinese-language interpreter, I received a request for written reasons, which I now publish. 

2. This is an application by RSCD, to whom I shall refer as “Mr S” in the course of these reasons. He has brought an application to the Tribunal to have a decision of the respondent’s delegate dated 12 May 2022 set aside. By this decision the delegate affirmed an earlier decision taken in the respondent’s department to cancel Mr S’s Class BB Subclass 155 Five Year Resident Return visa. The visa had been cancelled mandatorily under section 501(3A) of the Migration Act 1958 (“the Act”) because Mr S had been convicted of a very serious offence involving an assault upon his wife, Ms S, and had been sentenced to a lengthy term of imprisonment. There is no doubt that this initial decision was correctly made.

3. Mr S made a timely application to have the cancellation of his visa revoked.  The delegate who was tasked with considering his application had, first, to decide whether Mr S passed the so-called “character test” under section 501: see section 501CA(4)(b)(i). Mr S clearly did not pass that test as he had a “substantial criminal record” as defined: see section 501(6)(a) and (7)(c).  Having correctly reached that conclusion, the delegate had then to decide whether there was “another reason” for the cancellation decision to be revoked: see section 501CA(4)(b)(ii).  In reaching his or her decision on this issue, the delegate was obliged 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

4. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions. As I have said, the first question (namely, whether Mr S passes the so-called “character test”) was correctly answered by the delegate.  In respect of the second question, I, too, must apply the Direction. I note that in matters like this the Tribunal proceeds de novo, to use the Latin expression; that is, the Tribunal hears evidence, receives documents, draws inferences and makes its own final findings of fact. It does not merely review the decision before it for error.  This manner of proceeding implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me. Equally, I may set aside a decision under review notwithstanding the absence of any discernible error in the reasoning of the delegate if that is the correct or preferable decision on the evidence.  At the hearing before me, Mr S represented himself.  He gave evidence and made submissions through a Chinese-language interpreter.  Ms Letcher-Boldt appeared for the respondent.

   STATEMENT OF CONCLUSION

5. I have decided to set aside the respondent’s delegate’s decision and to substitute a decision that the cancellation of Mr S’s visa be revoked.  I now set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

6. Mr S was born in 1966 in China.  He first came to Australia in 2009 on a visa.  I understand that at this time he was sponsored to come to Australia by his first wife, an Australian citizen, whom he met in Shanghai: see Ex R3 at p 33. 

7. His first marriage ended in 2013 or 2014.  He then sought another partner.  He got to know his second wife, Ms S, in 2014 over the internet through the “WeChat” app.  She was some years younger than he was.  Mr S travelled to China to meet her.  They married in China in 2016, and Ms S emigrated to Australia later that year.  I accept that Mr S genuinely loved Ms S: see, for example, Ex R3 at p 37.  He wanted very much to start a family with her. 

8. Mr S has a continuous work history in Australia. He has worked with the same furniture company, W Furniture, since 2009 and has received a very positive reference (see Ex A1) from Mr C, its owner, who also gave evidence before the Tribunal. 

9. Mr S’s criminal record was before me. It is very short.  In 2014 Mr S was convicted in the Bankstown Local Court of failing to give his personal details to the owner of certain property.  Mr S gave evidence, which I accept, that he had hit a car and had not realised that the car had been damaged.  Accordingly, he did not leave his details behind. The conviction for this offending goes back to January 2014, more than eight years ago now, and only a fine was imposed. This is the only criminal conviction that Mr S has apart from the very serious convictions I am about to detail. In the circumstances, this minor criminal offending can have no material bearing on my decision-making.  I might also mention that Mr S failed to disclose this offence in an incoming passenger card, but this omission has no material bearing on my decision either.

10. In 2017, certain events occurred involving a most serious assault upon Ms S in the marital home. The sentencing remarks were before me (Ex R1 at pp 38ff) as well as the agreed statement of facts that had been placed before the sentencing Court (Ex R3 at pp 9ff). I accept these for the purposes of my review, and I base the following summary of the facts on their contents.

11. Ms S had commenced working at a massage parlour in March or April 2017. Her work soon changed to that of a sex worker at a brothel. Mr S was unaware of this latter work.

12. While working at the brothel, Ms S became romantically involved with one of her clients, a man called “Joe”. Mr S was unaware of the relationship. In June/July of 2017 Ms S and Joe went to the snowfields together. Mr S was unaware of this trip.  They left together again in September 2017, this time for the Gold Coast, but again Mr S was unaware that Ms S was travelling with a man.

13. On her return to the marital home from the Gold Coast trip, Ms S initiated discussions about a separation. Mr S was not happy with that suggestion and said he wanted the marriage to continue.

14. On 25 September 2017, Joe attended the marital home. Ms S had not told Joe that she was married. Mr S realised on that day for the first time that Joe and Ms S were in a relationship.  He did not realise at that point, however, that Ms S was a sex worker at a brothel.

15. At some point before 27 September 2017, however, Ms S told Mr S that she was a sex worker. The sentencing remarks record that the news came as a shock to Mr S. The sentencing remarks go on to state that Mr S did not seek to have Ms S leave the premises. Rather, Mr S tried to be supportive of Ms S.  He  expressed concern for her wellbeing as a sex worker and offered to obtain money to assist her to pursue alternative employment in a shop.

16. The sentencing remarks record that in the early hours of 28 September 2017, Ms S came home after her evening’s work at the brothel. Further discussion followed about Mr S lending Ms S money to open up a shop. Consensual sexual intercourse occurred after this discussion.

17. Mr S later returned to the bedroom with water that Ms S had asked him to get, and he found her on “WeChat” communicating with Joe.  Mr S went back to his own bedroom and fell asleep for a while. He woke up at about four o’clock in the morning. Mr S then took a claw hammer from his toolbox nearby. He entered Ms S’s room where she lay sleeping. He struck Ms S five times to the head with the hammer. He told her that he was going to “butcher” her. Mr S also choked Ms S tightly.

18. The sentencing remarks record that Mr S “suddenly stopped- as if [he] had woken from some trance”: Exhibit R1 at p 41. He then immediately went to Ms S’s aid. He tried to assist her by using a quilt to staunch the bleeding. Mr S left the room and called his employer, Mr C. He did so because he wanted Mr C to summon an ambulance: Mr S’s English was too poor for him to make that call himself.  He also went to the adjacent house, which belonged to the landlord, and begged him to call not only an ambulance but also the police.

19. The attack was extremely violent. It clearly had the potential to kill Ms S. Indeed, it might well have killed her but for the prompt arrival of the ambulance.

20. Ms S sustained very severe injuries. She suffered very severe skull and facial fractures.  These are listed in paragraphs (a) to (h) of paragraph [33] of the agreed statement of facts, which I have read closely.  Ms S suffered nerve damage causing a loss of smell and reduced hearing in her right ear.  As at the date of the sentencing hearing, Ms S was no longer able to work, and she found herself in a constant state of confusion, helplessness, anxiety, and panic. She suffered grievously as a result of the attack and suffered permanent pain in the lower part of her body requiring the continual administration of pain killers.  None of this is surprising given the extremely violent attack upon her.

21. Mr S was charged, first, with causing grievous bodily harm with a weapon with intent to harm Ms S, and, secondly, with intentionally choking her with recklessness. The sentencing Court described the offending as “completely out of character”: Exhibit R1 at p 43.  Mr S expressed remorse for his attack, which the Court accepted as genuine: Exhibit R1 at p 43. He pleaded guilty at the first available opportunity. Accordingly, he received a discount on his head sentences.

22. The sentence that would have been imposed in relation to the grievous bodily harm offence was ten years, but it was reduced to seven and a half years on account of the guilty plea.

23. The choking offence would have received a sentence of four years but was reduced on account of the guilty plea to three years. Mr S had been taken into custody on 28 September 2017, the day of the offending. A non-parole period (in relation to the more serious offence) of four years was set.  This expired on 27 September 2021.

24. Mr S became eligible for parole in due course, but was taken immediately into immigration detention as his visa had been cancelled on 9 April 2020.  Mr S had made representations against the cancellation decision seeking to have his visa reinstated. These are recorded in the material before me as having been made on 5 May 2020: see Ex R1 at p 17.  Despite that, the delegate did not reach his or her decision until 12 May 2022, namely two years later.

25. Mr S has been detained in immigration detention for some considerable time.  I point out that it is not satisfactory that a decision in this matter was not made well before Mr S was eligible to be paroled. Had such a decision been made, Mr S would not have spent the substantial period of time that he has in immigration detention.  That is a matter of real concern although it is not one that bears on the decision I have to reach.

    REASONS: APPLYING DIRECTION 90

26. Like the delegate, I must apply Direction 90. I customarily cite what I put in Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2119 at paragraphs [32]ff in this regard:

    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.

    (i)Primary Considerations

27. I turn now to consider the primary considerations.  It is quite clear that they all point towards affirming the decision under review. 

28. The first consideration is the protection of the Australian community.  Paragraph 8.1(1) requires me to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Decision-makers should have particular regard to the principle that remaining in Australia is a privilege conferred on non-citizens in the expectation that they will be law-abiding and will not cause or threaten harm to individuals or the Australian community. I bear this principle in mind.

29. Under subparagraph (2), I must give consideration to the nature and seriousness of Mr S’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct. It is clear that under paragraph 8.1.1(1), Mr S’s offending must be assessed as very serious. It was an extremely violent crime; it was a violent crime against a woman; and it also constituted an act of family violence. These are all singled out in subparagraph (a) as instances of very serious offending.  I need not have regard to the sentence imposed (according to subparagraph (c)); but I note the two sentences were lengthy and appropriately reflected the serious nature of the offending.  The assaults can only be described as of the most concerning kind.  I accept that the sentencing Court described the hammer attack as being in the midrange for offending of that type and the choking offence as slightly below the midrange (see Ex R1 at p 43). Both offences were considered to be aggravated, however, by the fact that they took place in the victim’s home. Furthermore, the Court expressly found that the offending was life-threatening. That is to my mind an extremely serious aspect of the offending. 

30. There is no frequency of offending as such because there was just one violent episode; but I do note that many blows were struck and there was choking as well. As a number of blows were struck, I should have regard to the cumulative effect of repeated offending.  I do so on the basis that the repeated blows have incapacitated Ms S substantially and on a long-term basis.  The consequences to her have been, and continue to be, very severe from both a physical and psychological perspective.

31. All in all, I regard the nature and seriousness of the criminal offending as very grave indeed.  Its potential to have resulted in death was clear on the evidence.

32. I am also directed to consider risk: see paragraph 8.1.2.  First, I bear in mind what appears in subparagraph (1).  This subparagraph requires me to have regard to the Government’s view that the community’s tolerance of a risk of future harm becomes lower as the seriousness of the potential harm increases. It is noted that some conduct and harm may be so serious that any risk of its recurrence may be unacceptable.  I bear these principles steadily in mind.

33. I must first evaluate risk on an assumption that Mr S actually engages in further criminal or other serious conduct: see paragraph 8.1.2(2)(a). Obviously enough, on that assumption, the nature of harm to a future female partner would be extreme. I must take that into account.

34. I must also assess, “cumulatively”, the likelihood of Mr S engaging in further criminal conduct. I must take into account information and evidence about the risk and evidence of rehabilitation achieved by the time of my decision.

35. Estimation of risk is not easy in this case. Mr C, Mr S’s employer at W furniture, gave evidence that he would offer Mr S both a place to live at (namely, with him) and a position at W furniture.  In my opinion, these would represent important stabilising factors.

36. In estimating risk in this case, I must also have regard, I believe, to the circumstances of the offending, which are extremely unusual. On the evidence before me, I do not doubt that Mr S was genuinely committed to his marriage. He had learned the confronting news that his wife was a sex worker and had also become romantically involved with a client with whom she was taking holidays behind his back.  Even after that, there was some expression of concern by him for her welfare. That is the background to the extraordinary outburst of violence that occurred on 28 September 2017, which was also followed by Mr S’s immediate concern for his wife’s welfare.

1. As I have noted, the Court sentenced Mr S on the basis that he had “stopped as if [he] had woken from some trance” and had immediately gone to Ms S’s aid. This points to a strong intervening psychological disturbance.

2. There is no psychological evaluation before me apart from Mr Diment’s opinion dated 13 March 2019 prepared for the purposes of the sentencing hearing: see Ex R3 at pp 23ff.  I have taken it into account.  Mr Diment formed a clear conclusion that Mr S was suffering depression and anxiety and high levels of stress leading up to the time of the attack. He referred in his report to a persistent depressive disorder with anxiety which was approaching an acute stress disorder in the days leading up to the offending, and that there was no evidence of a pre-existing mental condition before Ms S came home on 26 September with Joe: see Ex R3 at p 29.

3. The evidence before me suggests, therefore, that Mr S, who has otherwise very normal interests and a strong work ethic with no criminal record to speak of, was suffering a disorder that was approaching an acute stress disorder in the days leading up to the offending. The sentencing Court refers to the offending being completely “out of character” and that would appear to be plainly the case.

4. In assessing whether such violence is likely to recur, it is clear that Mr S will need psychiatric and psychological rehabilitation to minimise the risk of a recurrence. Were he to enter a relationship without such assistance, any perceived betrayal by him of that relationship may well lead to a violent episode of some sort.  It is true that Mr S was faced with highly unusual news that very few people have to face, and it is also true that he is unlikely to have to face that particular news again in his life. The betrayal of a marriage relationship in this particular way is uncommon.  Be that as it may, Mr S’s extreme reaction ‒ which was, of course, out of all proportion to the news he had received ‒ illustrated his underlying potential to explode uncontrollably when placed under stress. It follows, in my view, that Mr S is at risk, without treatment, of reacting violently to any perceived betrayal in an intimate relationship.

5. Mr S did say in his closing submissions that he wishes to seek psychological and psychiatric assistance immediately on release.  This is consistent with the submission he made to the respondent in writing: see Ex R1 at pp 86-87.  He did confirm that he wishes to meet a new partner, but he did also clearly say in his final submission that this would wait until he had been treated.

6. If Mr S honours that commitment, there will be in place a structured environment (namely, a familiar workplace and a home with his long-standing employer who speaks Mr S’s first language of Mandarin) that will offer something of a protective setting while he undergoes treatment.  At the present time, however, no such treatment has been undertaken and I note that the Direction requires me to assess risk as at the time of my decision.  It is difficult to assess what Mr S’s current risk of reoffending is; but it is clearly not low. 

7. I do note, furthermore, that under the Direction I am required to consider the risk “cumulatively” to the nature of harm Mr S would cause if he reoffended.   I do so.  The nature of that harm would be, as I have said, extremely serious.

8. The second primary consideration concerns family violence.  The Direction makes it clear that the Government has serious concerns about giving those who engage in family violence a right to remain in Australia. These concerns are said to be proportionate to the seriousness of the family violence perpetrated, which in Mr S’s case is extreme.   Subparagraph (3) of paragraph 8.2 makes it clear that I should have regard to the extent of rehabilitation achieved at the time of my decision. As I have said, I accept that Mr S requires psychological and psychiatric rehabilitation: it has not yet occurred. Obviously, the family violence in this case was extreme, as I have said, and I refer again to the potentially lethal impact of the hammer blows.

9. I must also take into account the best interests of minor children in Australia as the third primary consideration.  These do not arise here. 

10. The fourth primary consideration I must take into account is the expectations of the Australian community. I note that paragraph 8.4(1) provides that where a non-citizen has engaged in serious conduct in breach of the community expectation that Australian laws will be observed, the community expects “as a norm” that the non-citizen will not continue to remain in Australia. Subparagraph (2) goes on to cite acts of family violence and serious crimes against women as instances where the Australian community would expect that the Australian Government can, and should, cancel a visa.  These are said to give rise to very serious character concerns. Subparagraph (3) goes on to provide that the expectations of the Australian community apply whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Subparagraph (4) makes it clear that I should proceed on the basis of the Government’s views as articulated in paragraph 8.4 without independently assessing them for myself in a particular case. This fourth primary consideration weighs heavily against Mr S.

11. It is clear that, overall, the primary considerations all point in one direction; namely, that the decision under review should be affirmed. There is no primary consideration that points in the opposite direction. I acknowledge the force of the submission made by the respondent in this regard.

    (ii)Other Considerations

12. In paragraph 9 of the Direction, so-called “other” considerations are specified. There is a non-exhaustive list of four such considerations.  

13. If I affirm the decision under review, Mr S would be required to return to China. There are no international non-refoulement obligations arising on the evidence before me. 

14. So far as impediments on removal are concerned, like the delegate, I believe that Mr S would face initial difficulties in relocating to China; but I note that while Ms S has lived in Australia for some time, he has not been here for decades. He has been here since 2009 and arrived at the relatively late age of 43. He may find it difficult at his age to find work initially and to re-establish a social network. Those, however, would be initial difficulties only in my opinion. They would not necessarily be long-term difficulties. He has important, transferable work skills. 

15. I am concerned, however, about Mr S’s need for psychological and psychiatric treatment. This was clearly recommended by Mr Diment: see Ex R3 at p 30.  I do not have information before me concerning what mental-health treatment might be available to Mr S in China. I think I can proceed, however, on the basis that Mr S is more likely in Australia than in China to receive the immediate and short-term assistance he clearly requires. In China he would be faced with the pressing challenges of having to settle into life and find work promptly.

16. Mr S has indicated that his intention on release to the Australian community would be to seek promptly appropriate psychological and psychiatric treatment, and I accept his assurance in that regard.  He does have a very real interest in securing that assistance.  That is a matter I take into account in his favour.

17. I have no information concerning what impact my decision might have on Ms S, and I regard this as a neutral factor.

18. I am required under the Direction to have regard to Mr S’s links to the Australian community. I accept that Mr S arrived in Australia in 2009 as a mature man of 43, and not as a child or young man. Even so, I find that he has genuinely sought to build a responsible life here. He has worked hard and consistently with the same employer since his arrival in Australia in 2009.  He came to Australia in the hope of establishing a satisfactory marriage and family with his first wife, but those ambitions did not eventuate.  Apart from the offending involving Ms S, Mr S has been a hard-working and reliable resident and has made a contribution to the Australian community.  I believe I should attach weight to that.

19. Ms Letcher-Boldt indicated to me in her oral submissions that the circumstances of the offending were a relevant factor that I was entitled to take into account although not obliged to take into account. I believe that submission is accurate. Paragraph 9 of the Direction specifies a non-exhaustive list of considerations.

20. I believe I ought to take into account, as a further consideration in this case, the highly unusual circumstances of the offending.  The primary considerations, which seek to defend the safety of the Australian community, must be accorded very serious weight and I do so. They focus on past harm and the future risk of harm, amongst other things.  But in my opinion I ought not to treat this case in the same way as I would treat one of, for example, premeditated, cold-blooded violence or one of an explosive escalation after a long history of interpersonal conflict. That would be a very different sort of case calling for a different outcome. The explosion of violence that occurred in this case is not consistent with the domestic relationship.  There had been, no doubt, strains in the relationship, and there had been discussions about the relationship coming to an end, but it would not appear that the relationship was generally marred by violence or confrontation.  I do think I should weigh the psychological background of the offending, which Mr Diment analyses in his report.  That background differentiates it substantially from serious offending that is motivated by a long-nurtured desire to harm the victim.  To the contrary, the relationship between the couple was characterised by Mr S’s ongoing concern for Ms S’s welfare, including in the immediate aftermath of his explosive attack upon her.  The attack upon her was caused by a strong psychological disturbance.

    WEIGHING THE CONSIDERATIONS

21. I must weigh all the considerations very carefully.  I acknowledge once again that all the primary considerations point to a decision affirming the decision under review.  I acknowledge that, generally speaking, primary considerations should be given greater weight than other considerations: see paragraph 7(2) of the Direction. In a particular case, however, “other” considerations may prevail over primary considerations, and I note that I am required to consider the specific circumstances of each case in reaching my decision: see paragraph 5.1(2).  In the highly unusual circumstances of this case, I believe I should find on balance that a revocation of the cancellation decision is appropriate.  Mr S has committed to seeking appropriate psychological and psychiatric assistance, which he clearly needs and which is more readily available to him in the short-term here in Australia.  The sentencing Court expressly referred to his prospects of rehabilitation: they were said to be “very good”: see Ex R1 at p 43.  The Court accepted Mr S’s expression of remorse as genuine and found that the offending was completely “out of character”: see Ex R1 at p.43. There is cause for cautious optimism, in my opinion, that the violence that exploded on that night will prove to be a one-off event if Mr S undertakes, as I believe he will, appropriate treatment.

22. This is, as I say, a highly unusual case, and I must say that I have fluctuated in my thinking.  I have decided on balance, however, that the correct or preferable decision on the evidence in the circumstances of this particular case favours revocation of the cancellation decision.  Although all cases before the Tribunal may be said to be fact-specific, this one is particularly so. 

    FORMAL DECISION

23. Having reached that conclusion, I further conclude that there is “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii).  Accordingly, I shall set aside the decision under review and substitute a decision that the cancellation of Mr S’s visa be revoked.

    …………[sgnd]……………

    Associate

    Dated: 2 September 2022

Date of hearing:	14, 21 and 29 July 2022
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Emma Letcher-Boldt Clayton Utz