Sagar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 4535

Sagar and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4535 (11 November 2020)

Division:GENERAL DIVISION

File Number(s):      2020/5152

Re:Sagar Sagar

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:11 November 2020

Place:Sydney

The Tribunal sets aside the reviewable decision and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.

...............................[sgd].........................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass character test – assault – no prior convictions before arriving in Australia – protection of the Australian community – mental health considerations – no relevant minor children in Australia – expectations of the Australian community – other considerations – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 79 – 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

Senior Member M Griffin QC

11 November 2020

BACKGROUND

1. The Applicant seeks review of a decision of the delegate of the Respondent (the Minister) made on 22 August 2020 not to revoke a decision made under section 501(3A) of the Migration Act 1958 (Cth) (the Act) to cancel the Applicant’s Class TU Subclass 500 Student (Temporary) visa (the reviewable decision).

2. The Applicant was born in 1994 and is 26 years of age. The Applicant came to Australia on 10 January 2018 on the Student visa.

3. Upon his arrival in Australia, the Applicant had no prior criminal convictions. The Applicant was subsequently convicted of assault charges committed on 7 October 2018 and 3 March 2019.

4. On 12 September 2019, the Applicant was sentenced to an effective 18 months imprisonment which was reduced on appeal on 26 September 2019 to 12 months imprisonment.

   ISSUES

5. The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to section 501CA of the  Act. The Tribunal may revoke the original decision if the Tribunal is satisfied:

   (a)that the Applicant passes the character test as defined by section 501 of the Act; or

   (b)

   that there is another reason why the original decision should be revoked

   
   

   (subsection 501CA(4)(b)).

   RELEVANT LEGISLATION AND POLICY

6. Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person: see subsection 501CA(1).

7. Subsection 501CA(4) of the Act provides that:

   4The 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.

8. Subsection 501(6)(a) of the Act provides that a person does not pass the "character test" if the person has "a substantial criminal record". A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: subsection 501(7)(c).

9. Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

10. The Minister has made written directions pursuant to section 499 of the Act to guide decision-makers in the exercise of the power in subsection 501CA(4) (Direction No. 79 which commenced on 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.

11. The Preamble of Direction No. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:

    (a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;

    (b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;

    (c)a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to forfeit the privilege of staying in Australia;

    (d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;

    (e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age; and

    (f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

12. Part C of Direction No. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

13. Pursuant to Part C of Direction No. 79, the Tribunal must, to the extent that they are relevant to this case, take into account those three primary considerations and the other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.

14. The three primary considerations are:

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

    (b)The best interests of minor children in Australia;

    (c)Expectations of the Australian community.

    Primary Consideration 1 – Protection of the Australian community

15. Paragraph 13.1 of Direction No. 79 provides:

    (1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    (2)Decision-makers should also give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

16. The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.

    The nature and seriousness of the conduct

17. Sub-paragraph 13.1.1 of Direction No. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:

    (a)the principle that violent and/or sexual crimes are viewed very seriously;

    (b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;

    (e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;

    (f)the cumulative effect of repeated offending;

    (g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and

    (i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.

    The risk to the Australian community

18. Paragraph 13.1.2 of Direction No. 79 states that decision-makers must have regard, cumulatively, to the following:

    (a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.

    Primary Consideration 2 – Best interests of minor children in Australia affected by the decision

19. In relation to each child under the age of 18, decision-makers must decide whether revocation is in the best interests of that child.

20. In considering the best interests of the child, the following factors must be considered where relevant:

    (a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    (e)Whether there are other persons who already fulfil a parental role in relation to the child;

    (f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

    Primary Consideration 3 – Expectations of the Australian community

21. Paragraph 13.3 of Direction No. 79 provides:

    (1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

22. The principles to be applied, as set out in paragraph 6.3 of Direction No. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.

23. The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.

    Other Considerations

24. The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties to Australia;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.

    International non-refoulement obligations

25. The considerations at paragraph 14.1 of Direction No. 79 include (but are not limited to):

    (a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;

    (b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;

    (c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);

    (d)Where a non-citizen makes claims which may give rise to international non­refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;

    (e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.

    Strength, nature and duration of ties

26. The considerations at paragraph 14.2 of Direction No. 79 include:

    (a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;

    (b)the strength, duration and nature of any family or social links with Australian citizens and Australian residents, including the effect of non-revocation on the non-citizen’s immediate family.

    Impact on Australian business interests

27. Paragraph 14.3(1) of Direction No. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

    Impact on victims

28. Paragraph 14.4 of Direction No. 79 provides:

    Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

    Extent of impediments if removed

29. Paragraph 14.5(1) of Direction No. 79 provides that the extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.

    DISCUSSION

30. The Applicant’s first language is Hindi. Although an interpreter was provided, the Tribunal formed the view that the Applicant has a competent understanding of English and the Applicant was not disadvantaged during the course of the hearing. The Applicant occasionally had resort to the interpreter.

    Character Test

31. In accordance with subsection 501(6)(a) of the Act, the Applicant has a ‘substantial criminal record’ and accordingly, he does not pass the character test.

32. The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.

    Protection of the Australian community (past conduct and future risk)

33. The first assault for which the Applicant was charged occurred on 7 October 2018 and occurred when the Applicant had been drinking alcohol and it was the result of some form of verbal altercation between the Applicant and the victim. The Tribunal accepts that, on the evidence, it was a retaliation which was out of proportion for a perceived insult made by the victim to the Applicant. It occurred in the context of the Applicant having consumed alcohol. The Applicant was charged with common assault, for which he received 18 months community service. The level of punishment provides a sense of the level of seriousness of the offence.

34. The other three offences occurred about six months after this first offence and were unprovoked. These offences, which comprised three counts of assault occasioning actual bodily harm, occurred in company and on the same night separated only by some hours. Once again, the Applicant had been drinking and was intoxicated.

35. The victims on this occasion were known to the Applicant and his co-offender. It also appears that there was some bad blood on the part of the victims, the Applicant and his co-offender. Both victims were punched and one hit with a metal rod by the Applicant’s co-offender. Three hours elapsed when the Applicant and co-offender re-ignited the original argument. Although the Applicant did not cause all the injuries, because he was in company with other offenders, he is legally and practically responsible for injuries which included abrasions, fractured ribs, a lacerated spleen which required corrective surgery, and hospitalisation.

36. It is relevant that the Applicant’s offending increased in seriousness over the two offending incidents. It is common ground, because it was part of the sentencing process, that alcohol consumed to an extreme extent was the significant factor which contributed to the Applicant’s offending.

37. In an affidavit provided to the Sentencing Court dated 12 September 2019, the Applicant gave details of his background and recognised that his intoxication was the basis for his wrongdoing. The Applicant expressed remorse and there is no reason to dispute that fact. This was a point made by the Applicant during the course of the hearing and the Tribunal accepts his remorse. Furthermore, there was evidence placed before the Court which is not contested that he attended recovery classes at Odyssey House Community Services and completed eight sessions. This was of the Applicant’s own volition and demonstrates, in the Tribunal‘s view, some insight into his offending and the need to change.

1. As part of the material tendered, those who know the Applicant attest to his otherwise good character and the fact that this behaviour was isolated and out of character. Although the Tribunal considers these matters an important fact in the overall consideration of the seriousness of offending and the risk of future offending, the authorship of a number of those references is questionable and, therefore, little weight is attached to them. The Tribunal notes, however, that there is a reference tendered at the Applicant’s sentence to be found in the Supplementary G-documents[1] which is to similar effect.

   [1] SG1, 45.

2. The Tribunal is nonetheless satisfied on the material before it that the Applicant’s offending was entirely out of character and had its genesis in the Applicant’s poor mental health, discussed below.

3. There was a contemporary psychological report tendered at sentence prepared by Mr Borenstein. The report discloses conversations between the psychologist and the Applicant which judged the Applicant was being open, frank and remorseful when discussing his offending. The psychologist formed the view that the Applicant was a binge drinker of alcohol, most particularly on weekends, as a way to self-medicate because of the problems the Applicant was experiencing. The psychologist said at page 3 of his report:

   Mr [Sagar] arrived in Australia in January 2018 on a student visa, having completed a basic English course in India before his arrival. Mr [Sagar] enrolled at Charles Sturt University (Sydney campus), to study a Masters of Information Technology. Mr [Sagar] had no friends or family in Australia. He commenced the course of study in February 2018, and experienced difficulties. Mr [Sagar] has not passed any subjects since commencing the course, which has placed him under considerable pressure. Mr [Sagar] feels burdened by guilt, as his parents, who remain in India, provide financial support.

   Since his arrival in Australia Mr [Sagar] states, “I feel alone. I’ve always lived at home with my parents. I feel sad and depressed”. Mr [Sagar’s] symptoms of depression worsened as he struggled in his studies and repeated failures.

   I enquired about alcohol history. Mr [Sagar] commenced drinking alcohol in India, aged about 21. Mr [Sagar] states he was only ever a moderate consumer of alcohol in India. Mr [Sagar] increased alcohol consumption coinciding with the development of symptoms of depression following his arrival in Australia in January 2018.

   As aforementioned, Mr [Sagar’s] symptoms of depression worsened as he struggled with his studies. Mr [Sagar] began self medicating with binge drinking, resulting in frequent episodes of memory loss.

   Mr [Sagar] has struggled adapting to life in Australia, “I came alone. I always lived with my family. I knew no-one”. Such struggles continue to this day. Mr [Sagar] feels burdened by guilt for not fulfilling his parents’ expectations to achieve academic success.

   Mr [Sagar] returned to India in December 2018, where he remained for some three weeks. Mr [Sagar] recalls his parents pressuring him to succeed, “they said I need to work harder. They paid for the course. I go to the lectures, I don’t understand what the problem is”. Mr [Sagar] is considering transferring studies to Business, as he believes the current course requirements in IT are onerous and too difficult.

4. The Tribunal was satisfied that the Applicant has abstained from consuming alcohol since the time of offending and that this abstention is honest and serious and that the Applicant appreciates the relationship between his alcohol consumption and his offending.

5. The Applicant’s background described in the report is entirely normal and the opinion formed by the psychologist, in the Tribunal‘s opinion, appears to be correct and well-founded.

6. At page 7 of the report the psychologist stated:

   In my opinion, Mr [Sagar] developed a known mental illness/condition not long after his arrival in Australia in January 2018. Mr [Sagar] reports symptoms consistent with the diagnosis of an Adjustment Disorder with Depressed Mood.

   Mr [Sagar] began to self medicate with increasing amounts of alcohol as he struggled in his course of study. Mr [Sagar’s] repeated course failures compounded symptoms of depression, which led to him develop an Alcohol Use Disorder.

   The offending behaviours occurred only when Mr [Sagar] was heavily intoxicated in ways detailed in the body of this report.

   Mr [Sagar] has come to appreciate the impact alcohol has had on his poor decision making. He now understands he has used alcohol as a form of self medication against depression.

   Mr [Sagar’s] mental state has improved since attending the SMART Recovery program, and the arrival of his younger brother in May of this year.

   Mr [Sagar] feels a connection with the presence of his younger brother, which provides stability and motivation for Mr [Sagar] to focus on healthy lifestyle and reinforces his decision to abstain from alcohol, assisted further by regular attendance at the SMART Recovery program.

   Mr [Sagar] also requires psychological treatment to address the propensity towards relapsing into depression, which together with relapse prevention strategies will further reduce the likelihood of Mr [Sagar] reoffending.

   Mr [Sagar] reports benefit from ongoing rehabilitation of the sort he is currently involved in, namely SMART Recovery program.

7. Despite the comments of the learned sentencing judge, the Tribunal is satisfied that there is a causal connection, properly explained both by expert opinion and by the material, which demonstrates a connection between the Applicant’s offending, his alcohol consumption and his debilitated mental state at the time of offending.

8. In the Tribunal‘s opinion, this is a significant factor which diminishes the blameworthiness of the Applicant’s offending and is relevant to the consideration of the seriousness of the offending. It is a common sentencing principle that the mental health of an offender should be considered in terms of the way in which that condition has affected the offending by the subject. In the Tribunal‘s view, that is amply demonstrated by reference to the psychological report. That opinion is further supported by the fact that the behaviour by the Applicant was out-of-character by reference to his unremarkable history up to the time of his first offence in Australia.

9. The Tribunal views a significant feature in the Applicant’s case is that he voluntarily sought treatment at Odyssey House. This demonstrates insight, remorse and some determination not to offend in the future.

10. Objectively, the Applicant’s offending is particularly serious. However, it must be examined against the subjective facts and the circumstances in which the offending took place. Recognition should be given for the Applicant’s mental state at the time which, in the Tribunal‘s view, diminishes the overall seriousness of the offending.

11. The Tribunal recognises the force of, and takes into account in its assessment, the following matters submitted by the Respondent that:

    ·the psychological report assumed the Applicant’s brother would be living with him in Sydney;

    ·the Applicant had the support of and was living with a girlfriend, of some 12 months;

    ·the Applicant has not been in a position in the community to demonstrate that he can abstain from alcohol in the community; and

    ·the Applicant has not undertaken any follow-up treatment.

12. Despite these matters, because of the Applicant’s insight into his offending, the steps that he has taken to remediate his behaviour and the fact that now, on the evidence, he has his brother in Australia who is supportive of him, in the Tribunal‘s view, there is little likelihood that he will commit offences in the future. The Applicant has been in custody and immigration detention since he was sentenced on 12 September 2019. It is common ground that he did not come to the adverse notice of the authorities for illegal or bad behaviour during that period. This is substantial evidence that suggests, not only that the Applicant has effected a positive change in his behaviour but it also portends well for his future good conduct.

13. The original offending was not at large but was directed at people that he knew. Although that does not excuse the offending, it suggests that the Applicant is not someone who will commit offences of violence directed to the community at large. Taking all these factors into account, the Tribunal is of the view that this consideration weighs against the Applicant, but it should not carry significant weight.

    Best interests of minor children in Australia

14. There are no relevant minor children on the evidence.

    Expectations of the Australian Community

15. This consideration has been the subject of extensive judicial discussion (see FYBR v Minister for Home Affairs [2019] FCAFC 185). It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 79 at paragraph 13.3(1).[2]

    [2] FYBR v Minister for Home Affairs [2019] FCAFC 185, [68] (Charlesworth J), [93], [100]-[104] (Stewart J).

16. Specifically, the expectations of the Australian community would be affected by the Applicant’s relatively short time living in Australia when he commenced offending.

17. Having regard to the phraseology of Direction No. 79, because of the Applicant’s background, criminal history and likelihood of committing further offences, this consideration weighs against the Applicant.

    Other considerations

    Strength, nature and duration of ties

18. The Applicant has been in Australia a relatively short time, since January 2018. During that time on a Student visa, the Applicant has been pursuing a Masters of Information Technology. He has been singularly unsuccessful in that course, failing to pass any subjects. The Applicant, however, gave evidence that a number of assignments which he has completed will be credited towards subjects in his chosen course.  Nonetheless, he has a determination to succeed, partly because of his parents’ expectations of him and the fact that they have paid for his course. This is rather a matter, it seems, of his standing within the family and perhaps a wider social unit.

19. The Applicant has a brother in Australia who supports him. The Applicant has worked part-time during his period in Australia. The most significant “tie” to Australia is, in reality, the expectations of the Applicant and equally his family who expect him to remain to continue his course. The Tribunal notes the Applicant came to Australia having successfully completed a Bachelor of Science at an Indian university.

20. As far as it is possible to discern, this consideration weighs slightly in the Applicant’s favour.

    Extent of impediments if removed

21. This consideration has a factual connection with the previous consideration in that there are expectations on the Applicant by his family and by the Applicant himself, that he should remain in Australia to complete his course. The Applicant’s parents live in India. The Applicant has returned to India on one occasion. The Applicant has plans to return to his home country after completion of his degree. The Tribunal does not regard as relevant the fact that the Applicant, so far, has been unsuccessful in the pursuit of his chosen Masters degree. In the Tribunal's opinion, the removal of the Applicant from Australia before he can attempt to complete his Masters degree in a better state of mental health is a significant impediment to the Applicant. Whether this is properly a factor to be assessed under this consideration is a matter where opinions may differ. The Tribunal, nonetheless, considers it a major factor which weighs in the Applicant’s favour.

22. There are no issues of language, cultural matters or societal matters that would affect the Applicant returning to his home country.

23. The Tribunal does recognise that, at present, the Applicant’s brother resides in Australia. To that extent, the Applicant’s removal would affect both the Applicant himself and his brother should he be removed.

24. Overall, this consideration weighs in the Applicant’s favour.

25. The exercise in balancing the various considerations and apportioning weight is no mere mathematical exercise and its foundation is a properly exercised discretion taking into account all relevant factors and evaluating them in accordance with the requirements of Direction No. 79.

26. That Direction, however, is not limited in its considerations and there may well be matters which do not fall within the various considerations enumerated within Direction No. 79 which may properly be taken into account in the proper exercise of the Tribunal’s discretion.

27. In this case, there are matters which have been taken into account which do not fall neatly within the precise wording of those considerations.

28. It is the Tribunal’s view that, particularly in relation to “ties to Australia” and “impact on victims”, there are relevant matters which the Tribunal, in its discretion, has taken into account as factors in the Applicant’s favour.

    CONCLUSION

29. The Tribunal considers the Applicant’s intended pursuit of his chosen studies to be a significant factor which bears upon the overall weight to be apportioned to the various considerations referred to in Direction No. 79. Whether it is proper to characterise the Applicant’s pursuit of his studies and related factors as an impediment to his removal, a consideration relating to the Applicant’s ties to Australia or an independent and separate “other consideration” does not, to the Tribunal’s mind, affect the force and weight which should be given to this particular factor.

30. The Applicant has embarked on a Masters course, having paid, with the assistance of his parents, for part of that course. Although the Applicant has been particularly unsuccessful in the pursuit of his studies, he has gained some advantage by passing various assignments which count overall towards that course. The Applicant disclosed in evidence that he had taken “leave” from the course, not surprisingly because of the charges preferred against him and his consequential incarceration and detention.

31. Those matters so far may not have assumed the weight which the Tribunal now gives to them had it not been for the fact, which the Tribunal accepts, that he was affected by a state of depression, effectively since his arrival in Australia in January 2018.

32. In the Tribunal’s view, the Applicant should be allowed to pursue and complete his studies in Australia and this, with the other factors in his favour, outweighs the seriousness (albeit low) of the offending and the risk posed (which the Tribunal considers is relatively remote) and the expectations of the Australian community. The blameworthiness of the Applicant’s conduct is also considerably reduced by the mental health condition described by Mr Borenstein and accepted by the Tribunal.

    DECISION

33. The Tribunal sets aside the reviewable decision and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

..............................[sgd]..........................................

Associate

Dated: 11 November 2020

Date of hearing:	2 November 2020
Applicant:	Self-represented
Solicitors for the Respondent:	Mr C Brinley, Clayton Utz