Ung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 112

Ung and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 112 (3 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7391
Re:Pituodemongtero Ung
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Dr N A Manetta, Senior Member
Date:3 February 2020
Place:Sydney

The Tribunal sets aside the decision under review and substitutes a decision that the visa cancellation be revoked.
...............................[sgnd]..................................
Dr N A Manetta, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – interests of minor children – strength, nature and duration of ties – where applicant convicted of wounding with intent to cause grievous bodily harm and two counts of common assault – where applicant intoxicated during offending – where best interests of minor children favour revocation – decision under review set aside and in substitution decided that visa cancellation be revoked
LEGISLATION
Migration Act 1958
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
3 February 2020
Dr N A Manetta, Senior Member

This is an application by Mr Pituodemongtero Ung seeking a review of the Respondent’s delegate’s decision that the mandatory cancellation of his visa (effected under s 501 of the Migration Act 1958 (the Act)) should not be revoked.[1] Mr Ung is a Cambodian national who committed several serious offences in Australia on 31 October 2015 whilst intoxicated. At the hearing before me, Mr Ung was represented by Mr Nikjoo; the Respondent, by Ms Watson.
[1] The delegate had correctly concluded in his or her reconsideration of the matter that Mr Ung did not pass the threshold character conditions and further decided that there was not “another reason” to revoke the cancellation under s501CA of the Act.
Hearing the matter afresh, I must decide whether the delegate’s decision should be affirmed or set aside. I need not find any error in the delegate’s approach before setting the decision aside; equally, if it is appropriate to do so, I may affirm the decision under review despite the presence of an error. That is, the proceeding before me is a de novo hearing on the merits.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the visa cancellation be revoked. I set out below the background facts and the reasons for the conclusion I have just stated.
I note that the Minister’s delegate was required to apply Direction 79 (issued under s 499 of the Act) in deciding whether “another reason” existed which justified the revocation of the visa cancellation. I am also obliged to apply the Direction as part of my review.
BACKGROUND FACTS
Mr Ung, who was born in 1990, emigrated to Australia in 2009. He was 18 at the time. He came with his mother and sister and held what is known as a “Class BS Subclass 801 Spouse Visa” from 2011 until its cancellation. In Australia, he enrolled at Fairfield High School in Sydney. He improved his English there for two years. He was living with his mother and sister when he first arrived. The family did not earn much money. In late 2009, his mother gave birth to a third child, a daughter.
After approximately two years, Mr Ung left school and began work to assist the family to pay rent and meet household bills. He worked from 2011 until 2017, at which time he was jailed for certain offences I shall describe in due course.
Mr Ung’s father remained in Cambodia when the family left in 2009 and continues to live there. He and his wife had earlier separated. Mr Ung’s two sisters, now aged 11 and 10, are in fact half-sisters, both to him and to one another, each being the daughter of Mr Ung’s mother and a man other than Mr Ung’s father. One of these two men has returned to Cambodia and the other lives in Australia, but not in the family home. The latter visits the home from time to time.
In 2017 Mr Ung was jailed for four years and six months (with two years and four months set as the non-parole period) for certain offences. The offending occurred while Mr Ung was drunk at a Vietnamese community function that was taking place in a restaurant on 31 October 2015. As he was being escorted from the premises, Mr Ung struck a security guard with a glass. In addition, two other guards were assaulted as they tried to restrain Mr Ung.
Mr Ung has no memory of the event in question as he was drunk. He gave evidence, which I accept, that he woke up in hospital with no recollection. His evidence was that he could not believe what he had done when he saw the closed-circuit TV footage that was replayed to him.
Mr Ung was on bail awaiting trial for the October offences he had committed in October 2015 when he attended a nightclub on 20 May 2016. On this occasion Mr Ung became drunk. He was asked to leave the premises. He did so peacefully. Mr Ung called the police from the footpath outside the club, however, because he believed his eviction was unfair. The police records[2] show that Mr Ung was asked to move on by the officers in attendance. Mr Ung did move on and no criminal offending arose from this incident.
[2] Ex R2, p2.
The offending at the Vietnamese community function led to charges of wounding with intent to cause grievous bodily harm (in respect of the main victim) and assault (on the two security guards who had sought to restrain Mr Ung). Mr Ung pleaded guilty at an early opportunity and appeared for sentencing on 9 February 2017 in the District Court (sitting in Campbelltown). The sentencing remarks were in evidence before me.[3]
[3] Ex R1, pp25ff.
The agreed facts before the Court recorded that the main victim had suffered a deep laceration caused by broken glass which resulted in significant bleeding and damage to his underlying salivary gland as well as to a nerve that controlled certain facial-expression muscles.[4] The other victims’ injuries are not specified in the sentencing remarks, but it seems that Mr Ung threw punches.[5]
[4] Ibid, at p27.
[5] Ex R2, p37.
The Judge referred explicitly to the fact that he accepted Mr Ung’s evidence that since the offences he had not consumed alcohol outside the family home.[6] Mr Ung’s evidence was inconsistent with the May 2016 nightclub incident to which I have referred. On the evidence before me, I find that Mr Ung failed to disclose the nightclub incident to the Judge to secure the best outcome he could. Given that he was facing the prospect of a jail term that had yet to be set by the Court, the behaviour is understandable at a human level; but I accept Ms Watson’s submission that Mr Ung’s evidence to me that he is now a reformed person needs to be carefully scrutinised.
[6] Ex R1, at pp 28, 29.
The offences of which Mr Ung was convicted were serious. There was no evidence, however, of planning or premeditation: the Judge accepted the offending was spontaneous.[7] The Judge sentenced Mr Ung on the basis that the main victim was hit three times although he was struck with the glass once only.[8] There was no permanent injury.[9] The Judge indicated that in his opinion the offence fell “below the mid-range of objective seriousness for offences of this type”, but not at “the bottom end”.[10]
[7] Ibid, at p29.
[8] Ibid.
[9] Ibid.
[10] Ibid.
The Judge referred to Mr Ung’s remorse and to his early guilty plea. The judge imposed a global sentence of four years and six months and fixed a non-parole period of two years and four months.
Incident in jail
Whilst in jail, Mr Ung was involved in a fight. It was a minor incident in that it did not lead to a decision to prosecute Mr Ung of any offence in the criminal courts. Mr Ung gave evidence that he was using a vegetable scraper when he was picked on by another prisoner. The other prisoner hit him first, according to Mr Ung, and he attempted to defend himself. He said he seized the vegetable scraper but dropped it again.
The Corrective Services’ records show that Mr Ung pleaded guilty to a disciplinary charge of fighting.[11] They refer to Mr Ung picking up a knife that he later dropped.
[11] Ex R2, at p60.
In his evidence before me, Mr Ung said he had only pleaded guilty to the disciplinary charge to get the matter over and done with and because he felt his position in jail would be prejudiced if he did not plead guilty. The documentary evidence before me suggests that Mr Ung requested police action in relation to the incident and complained of an assault, but that he failed to co-operate with police in the ensuing investigation.[12]
[12] Ibid, at p1.
There were apparently no witnesses to the fight. It would also appear that Mr Ung attended the correctional centre’s clinic with head and facial injuries.[13]
[13] Ibid, at p52.
It is difficult for me to re-assess this incident. In all the circumstances, I accept that Mr Ung was not solely responsible for the fight. He sustained injuries and felt strongly enough about the incident to contact police.[14] More generally, I accept that the prison environment is not always an easy one to navigate so far as one’s personal safety is concerned. Importantly, for present purposes, it is not the same environment as exists in the wider Australian community.
[14] I note further the reference in Ex R1, p1 to all inmates being reclassified and moved, which would suggest that Mr Ung was not solely to blame.
Mr Ung made the sensible choice not to use the knife (or vegetable scraper) he had picked up. He was not charged with assault nor did he face any further criminal action, but his low security status was reviewed (and apparently downgraded adversely). In the circumstances, I do not find that the incident indicates an ongoing propensity for violence.
Personal circumstances
Mr Ung referred to the financial contribution he made to the household before he was taken into custody. He had well-paying work in Sydney and elsewhere, working five to six days a week as an independent contractor engaged in various demolition and asbestos-removal jobs. He gave evidence that he was earning some $1200 a week and that he would give his mother some $300 a week for the family’s groceries, $600 per quarter for the family’s electricity, and $120 per quarter to meet water charges. He would also give his mother money from time to time for her own use. I accept that Mr Ung made a substantial contribution to the family’s income (although part of the contribution must have reflected his own consumption). His mother does not have a job, She receives Centrelink’s Newstart Allowance and money she receives from her former partners.
During his time in Australia, however, Mr Ung developed a drinking problem. He would regularly go out with friends. He would often drink to excess. The material before the Tribunal refers to “binge-drinking”.[15] Mr Ung confirmed his drinking problem in his oral evidence. I note further the references in the documentary evidence before the Tribunal (including in the Judge’s sentencing remarks) to substance misuse but there was no exploration of the nature or extent of that misuse before me.
RE-EXERCISING THE DISCRETION UNDER DIRECTION 79
[15] For example, Ex R2 at pp14 and 41.
Mandatory cancellation
Mr Ung’s visa was cancelled mandatorily whilst he was in jail because he was serving a period of imprisonment and had failed the “character test” set out in the Act. I need not set out the relevant provisions as it was agreed between the parties that the visa was properly cancelled by the Minister’s delegate. When Mr Ung was paroled on 8 June 2019, he was taken into immigration detention and is currently held in the Villawood Detention Centre.
Mr Ung made representations to have the mandatory cancellation of his visa revoked. The delegate considered Mr Ung’s representations and applied Direction 79. He or she decided that Mr Ung did not pass the character test− which, as I have said, was not a matter in dispute before me− and further decided that there was no other reason for revoking the visa cancellation. Mr Ung’s application for reinstatement of his visa was declined.
Direction 79
I now turn to the re-exercise of the discretion in accordance with Direction 79. The Direction is divided into parts. Paragraph 6 contains a preamble which sets out the “objectives” of the direction, “general guidance”, and “principles”.
Paragraph 6.1(1) notes that the objective of the Act is to regulate in the national interest the presence in Australia of non-citizens. The purpose of the direction is to guide decision-makers performing functions including the revocation of a mandatory cancellation order. It is further noted that where the discretion in question involves the revocation of a mandatory visa cancellation, the decision-maker must consider the specific circumstances of the case.
I would emphasise that the specific circumstances of an individual case must be addressed and weighed up. This is, of course, consistent with the rules governing the exercise of discretion under administrative law principles.
“General guidance” is articulated in paragraph 6.2. Subparagraph (1) notes that the Government is committed to protecting the Australian community from harm as a result of criminal activity.
The principles are set out in paragraph 6.3 and may be summarised, so far as they are relevant to this case, as follows:
(i)Australia has a sovereign right to determine whether a person should remain in Australia. Remaining in Australia is a privilege conferred on noncitizens in the expectation that they will respect Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community;
(ii)The Australian community expects that the Australian Government should cancel visas if a person commits serious crimes in Australia. A non-citizen who has committed a serious crime including of a violent nature should generally expect to be denied the privilege of staying in Australia;
(iii)The criminal offending may in some circumstances be so serious that any risk of its repetition would be unacceptable;
(iv)Australia has a low tolerance of criminal conduct by people who have been participating in, and contributing to, the Australian community for a short period of time but Australia may afford a higher level of tolerance of criminal 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;
(v)The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of a visa cancellation for minor children and other immediate family members in Australia are considerations that are relevant when determining whether that non-citizen’s visa should be cancelled.
Section 2 of the Direction requires me to be “informed” by the principles in paragraph 6.3 and to take into account the considerations set out in Part C in order to determine whether the mandatory cancellation of Mr Ung’s visa should be revoked.
I note that there are so-called “primary” and “other” considerations listed in Part C. In weighing the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. I note that both primary and other considerations may weigh in favour of, or against, revoking a mandatory cancellation of a visa, but primary considerations should generally be given greater weight than other considerations. It is also recorded that one or more primary considerations may outweigh other primary considerations.
Part C
I now turn to Part C. There are three primary considerations specified. The first is protection of the Australian community from criminal or other serious conduct; the second is the best interests of minor children in Australia; and the third is expectations of the Australian community.
(i)Protection of the Australian Community
Paragraph 13.11 reiterates that the protection of the Australian community is a principle to which the Government is committed. I must consider the nature and seriousness of Mr Ung’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious misconduct.
I shall not set out the factors that I must take into account in determining the nature and seriousness of Mr Ung’s criminal offending. These are set out in subparagraphs (a) to (i) of paragraph 13.1.1(1). I accept that Mr Ung’s offence was one of violence and that it must be viewed very seriously.
I do not regard the security guards as “vulnerable” members of the community for these purposes, although one of them was 63 years of age. I do note that the sentencing Judge treated the security guard as a vulnerable person under New South Wales’ sentencing laws; but for the purposes of the direction, “vulnerable” community members are those who are in a position of special disadvantage, such as the elderly or disabled. There is no evidence before me that suggests the security guards fell into this category.
I must take into account the sentence imposed by the Court. In this regard I note that the sentence reflected the Court’s estimation that the main offending was “below the mid-range of seriousness” but not in “the bottom range”. The Judge referred[16] to the standard non-parole period of seven years. I note that he would have fixed a sentence of six years, but on account of the early guilty plea, fixed a sentence of four years and six months. In my opinion, I must regard the crime as very serious; but, in my opinion, it is not of an order that of itself makes the continued presence of Mr Ung in Australia unacceptable (cf paragraph 6.3(4)).
[16] Ex R1 at p25.
I note that there is no frequency in Mr Ung’s offending. Although Mr Ung was often out drinking with friends, there is no other recorded instance of his having offended in this manner (or in any other way). The events at the Vietnamese community function were induced by alcohol: Mr Ung had simply become so disinhibited by alcohol that he took an action which he would not normally take and has not taken in the past.
I would not regard the fight in prison as a reliable predictor of Mr Ung’s likelihood to reoffend in the wider community. This incident did not result in a criminal prosecution but was dealt with as an internal disciplinary matter. All in all, and for the reasons I have earlier given,[17] I do not think it is of substantial relevance.
[17] At [16]ff.
I must also have regard to the risks to the Australian community should Mr Ung commit further offences. I am required to have regard to, “cumulatively”, two matters: first, the nature of the harm to individuals or the Australian community should Mr Ung engage in further criminal or other serious conduct, and, secondly, the likelihood of Mr Ung engaging in further criminal or other serious conduct.
The nature of future harm to the Australian community should Mr Ung engage in further criminal conduct is very serious. The use of a glass in an assault is an inherently dangerous act. The resulting lacerations can be very harmful and are sometimes life-threatening. In this case the Judge found that only one laceration was inflicted, but even so, the assault was very serious. It could well have led to a worse injury; and should the conduct be repeated in the future, the consequences could easily be as serious or even more serious.
I must estimate the likelihood of Mr Ung’s engaging in further offending of this type. This has proved a problematic feature of this case. The incident involved an uncharacteristic assault resulting from disinhibition caused by alcohol. Ms Watson rightly pressed me with the submission that the incident involving Mr Ung when he was on bail (in which he was evicted from a nightclub, albeit peaceably) is of real concern. It is of concern because Mr Ung knew at the time that alcohol could lead in his case to disinhibition with very serious consequences for others. As I have said, the offending involved uncharacteristic behaviour, but alcohol frequently disinhibits a person with very serious consequences. Mr Ung chose to drink to excess in a public environment that was similar to the one in which he committed the criminal assaults. His behaviour was highly irresponsible.

Equally, however, I believe I should have regard to the fact that since that time, Mr Ung has spent over two years in jail, and since June 2019 he has been held in immigration detention. During this entire period (which at the time of my decision is just short of 3 years) he has not consumed any alcohol or taken any other form of prohibited drug.
A psychological report[18] was tendered and its author, Mr Hasan Cinar, gave evidence. Mr Cinar examined Mr Ung in January of this year and administered tests, the results of which suggested that Mr Ung presents a low risk of reoffending. The report records that Mr Ung has a number of protective factors in place which will act to guard against future recidivism including:
(a)a stable relationship with his mother and half siblings;
(ii)       Mr Ung’s intention to resume employment;
(iii)      the lack of criminal history; and
(iv)      the absence of a psychiatric disorder.
[18] Ex A10.
Mr Cinar gave evidence in cross-examination that he had not been told about the subsequent incident at the nightclub where Mr Ung had got drunk. He conceded this event would require him to re-administer the tests before he could draw a firm conclusion as to risk. He was unable to indicate whether his conclusion would still be that Mr Ung was at a “low” risk of reoffending, but, equally, he did not say that the assessment would inevitably change.
Mr Cinar confirmed in an answer to a question from me that Mr Ung’s jail experience is likely to be a strong deterrent given that Mr Ung is a first-time offender. He was clear that there is much research to this effect in respect of first-time offenders.
I accept the force of Ms Watson’s submission that Mr Ung was irresponsible when he drank to excess in the nightclub while on bail. Nevertheless, I attach significance to the effect of jail upon Mr Ung, who had not experienced it before, and also of the effect of immigration detention (that is, the bringing home to him of the reality of the end of his life in Australia). It may be that Mr Ung lacked, and continues to lack, insight into the effect of his behaviour on his victims; but I do not believe the effect of jail and immigration detention will have failed to impress on Mr Ung the consequences he will face if he reoffends.
In my opinion, alcohol misuse would most likely lie at the root of any further offending in Mr Ung’s case. Mr Ung has not lived in the community recently and to that extent remains “untested”; but he has not consumed alcohol for some three years. Fortunately, Mr Ung has had a considerable period of forced abstinence which will stand him in good stead.
Moreover, the evidence before me is not sufficient to conclude that Mr Ung was an alcoholic with a deep-rooted addiction when he entered jail despite the references in the documentary evidence to “binge-drinking”. When he entered jail, Mr Ung was not, it would appear, removed to a medical clinic on account of any alcohol-withdrawal symptoms he might have been expected to experience had he been a serious addict. In any event, he has had, as I have said, a considerable period of forced abstinence of almost three years.
Mr Ung is now in the fortunate position of having had to live without alcohol for some years. On his release from detention, it would be entirely a free choice on his part were he to resume drinking. I also note that his bail conditions, which are effective until 2021, prohibit drinking.[19]
[19] Ex R1, at p190.
In all these circumstances, I have concluded that the risk Mr Ung poses to the community, whilst not eliminated, is low, although, as I have said, I do consider that the nature of his offending is such that any repetition of it could lead to very serious consequences for the victim.
(ii)Interests of Minor Children
The second primary consideration I must consider is the interests of minor children in Australia. This is an important consideration in the circumstances of this case. I accept the written statements that have been tendered that indicate the two sisters have a close relationship with Mr Ung.[20] I also accept Mr Ung’s evidence that the relationship is a close one.
[20] Exs A8 and A9.
One of the two minors does not have her biological father in Australia. The father of the other child does live in Australia and visits the house periodically. I accept that the two children see that man from time to time and there was no evidence that he discriminates in his treatment of them when they all go out together. Nevertheless, one of the children does not have a father in Australia, and the other has a father who does not live in the family home.
Mr Ung is a good deal older than his half-sisters and has, unusually, acted in the past to support his half-sisters financially. I do not think that they confuse him with their true father, but he is more than a conventional older brother.
I believe that the children’s financial interests would be significantly harmed if Mr Ung were not to return home. On the evidence before me Mr Ung’s mother is a social welfare recipient although she also receives money from her former partners. She lives in rented accommodation and does not own her own home. Mr Ung was successful in making a good living. He began that task soon after leaving school and secured well-paying jobs. A number of witnesses attested to his skills and reliability as a worker. Some are ready to re-engage him.[21]
[21] See, for example, the references in Exs A5, A6, and R1 at pp 74 and 75. The referees confirmed in their oral evidence their willingness to employ Mr Ung despite his criminal history.
I do believe, therefore, that Mr Ung’s departure from Australia would detract in the longer term from the money available to support the half-sisters. Whilst it is true that the family seems to be managing bills at the present time, I believe I should take a wider view of the benefit that Mr Ung’s income could provide for the half-sisters on a longer-term basis. I think that benefit is significant and is a matter I should take into account.
I accept that Mr Ung has demonstrated over the course of his adult life a commitment to his family. He did not seek to leave the family home despite earning significant amounts of money.
Against that, I must weigh up Mr Ung’s evidence that he was frequently drinking and, it would appear, gambling; but these unfortunate aspects of Mr Ung’s behaviour do not eliminate, in my opinion, the contribution he made to assisting in the financial support of his half-sisters.
I also attach some weight to the fact that Mr Ung is the only male figure in the household who is present on a regular basis. That enables him to interact regularly with the children and assist in their development in a positive way, although, as I have said, I do not believe the children view him as a father.
My conclusion is that the primary consideration of the best interests of the two minor children is one that weighs in Mr Ung’s favour.
(iii)Expectations of the Australian community
I must also take into account the Australian community’s expectations. These are set out in paragraph 13.3. I note that I am not to judge for myself what the expectations of the Australian community are in this regard.[22] It is clear that these are encapsulated in the Direction, and I must assume that the Australian community would view unfavourably Mr Ung’s criminal conduct and his continued presence in Australia. I take these expectations into account.
(iv)Other considerations
[22] FYBR v. Minister for Home Affairs [2019] FCAFC 185 at [75], [104].
I am also to have regard to other considerations. A non-exhaustive list of five is set out in paragraph 14 of the Direction. The first consideration is international non-refoulement obligations. Mr Nikjoo submitted that Mr Ung would face hardship in Cambodia were he to return there. This hardship would arise from his limited written Khmer and his inability, for the most part, to read Khmer, although he does speak it fluently. I queried with Mr Nikjoo whether his submission was that those who are illiterate in Khmer are discriminated against in Cambodia, to which he replied “no”. His submission was, rather, that Mr Ung would suffer hardship because he would find it more difficult to find employment and generally to cope with life there. In my opinion, the fact that Mr Ung might face more difficulties resettling in Cambodia initially because of his inability to read and write Khmer does not give rise to any non-refoulement obligations.
The second consideration is the strength, nature and duration of ties. I am required to have regard to the length of time Mr Ung has lived in Australia. Mr Ung had a significant period of time in Australia before he began offending and during that time he contributed positively to the Australian community by consistently holding down jobs and leading a lawful life. I have taken this into account. I take into account that Mr Ung has close a relationship with his mother whom he supports financially. I have already taken into account his ties with his half-sisters when addressing the second primary consideration.
The third and fourth considerations (namely, the impact on Australian business interests and the impact on victims) were not the subject of evidence before me and may be put to one side.
The fifth consideration is the extent of any impediments Mr Ung would face on removal. Mr Ung has grandparents with whom he could make contact in Cambodia and I believe he could stay with them for at least an initial period while he found work and established himself. I accept Mr Ung’s mother’s evidence that Mr Ung’s father is apparently unwilling to provide much support although I believe it remains to be seen whether the father-son relationship is truly at an end. I accept that Mr Ung is fluent in spoken Khmer and has relevant work skills. More generally, Mr Ung is young and healthy and has a good chance of re-adapting to life in Cambodia.
I do accept that Cambodia cannot be compared to Australia given the latter’s advantages (including economic and social advantages) and in that sense there are will be some impediments that Mr Ung will have to face. Nevertheless, I note that Mr Ung lived in Cambodia until he was 18 and has familiarity with its way of life.
Critical considerations
In re-exercising the discretion, I must address what I believe is the principal concern; namely, that Mr Ung has committed serious and violent offences as a result of alcohol misuse. If Mr Ung recommenced immoderate drinking, there would be a clear risk of dangerous reoffending. I have referred earlier to Mr Cinar’s expert report that the risk of Mr Ung reoffending is low, although Mr Cinar qualified that conclusion in his oral evidence when he was made aware of the later bout of drinking. I have accepted, however, that Mr Ung, as a first-time offender, will most likely have found the experience of jail a very strong personal deterrent. I believe anyone of normal sensibilities would. In addition, he has very good prospects of employment, which is an important consideration. A number of people have suggested they would re-employ him.[23] As I have mentioned, his bail conditions will prevent the consumption of alcohol until 2021, and at the time of my decision, he has not drunk for some three years.
[23] See fn 21 above.
I think there are good reasons to suppose that Mr Ung will make the positive choice not to resume drinking. I could be wrong in that conclusion, however, and I must weigh up the fact that there is some risk to the Australian community of his reoffending and that the consequences of the reoffending could be extremely serious for any person he assaulted again. I must also take into account, as a primary consideration, the expectations of the Australian community, which favour a confirmation of the decision under review.
Against this, I must weigh up the interests of the two minors in relation to whose support Mr Ung makes a considerable contribution and with whom Mr Ung has a close relationship. I take into account that Mr Ung is an integral member of that family unit even though he is now approaching 30. The evidence does not suggest that Mr Ung has ever wished to leave home to strike out on his own, so to speak. His mother and sisters depend upon him to a considerable extent. Mr Ung would face difficulties in supporting his sisters from Cambodia.
I must also take into account the other considerations to which I have referred above.
CONCLUSION
This has proved to be a very difficult case, but in all the circumstances, I have concluded, on balance, that I should revoke the visa cancellation decision. Were it not for the interests of Mr Ung’s two half-sisters, I would have affirmed the decision under review, since the other factors to which I have referred do not outweigh by themselves the primary considerations of the risk to the Australian community and the community’s expectations. The interests of the two half-sisters are a primary consideration to which I must give due weight, however, and their interests do weigh heavily in favour of revocation of the mandatory cancellation decision.
FORMAL DECISION
I shall set aside the decision under review and substitute a decision that the visa cancellation be revoked.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member.

…………………[sgnd]…………….

Administrative Assistant Legal
Dated: 3 February 2020
Dates of hearing:  20 & 21 January 2020
Applicant’s representative:                 Mr F Nikjoo, Nikjoo Lawyers
Respondent’s representative:            Ms D Watson, Australian Government Solicitor