Aualiitia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5557 (20 December 2019)

Last Updated: 24 December 2019

Aualiitia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2019] AATA 5557 (20 December 2019)

Division: GENERAL DIVISION

File Number: 2019/6619

Re: Ben Joseph Aualiitia

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Senior Member D. J. Morris

Date: 20 December 2019

Place: Sydney

The Tribunal decides that:

1. the decision under review, being the decision of the Respondent dated 9 October 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) is set aside.

2. in substitution, the cancellation of the Applicant’s visa is revoked under section 501CA(b)(ii) of that Act.

..............................[sgd]..............................
Senior Member D. J. Morris

CATCHWORDS

MIGRATION – Mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – character test – Ministerial Direction No. 79 – primary considerations – other considerations – consideration of interactions with police which did not lead to charges – any other reason – decision under review set aside and new decision substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 33A, 62
Crimes Act 1900 (NSW) s 97
Migration Act 1958 (Cth) ss 499, 501, 501CA
Migration Regulations 1994 (Cth) reg 2.52

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Lowns & Anor v Woods & Ors (1996) Aust. Torts Reports 81-376
Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22

SECONDARY MATERIALS

Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)

REASONS FOR DECISION

Senior Member D. J. Morris


20 December 2019

Background

1. Mr Ben Aualiitia is a citizen of New Zealand. He was the holder of a Class TY Subclass 444 Special Category (Temporary) visa until 12 October 2017 when it was cancelled by a delegate of the Respondent under section 501(3A) of the Migration Act 1958 (Cth) (the Act) because of the operation of subsections 501(6)(a) and (c) of that Act.
2. On 9 October 2019 a different delegate of the Respondent decided not to revoke the mandatory cancellation of the visa. Mr Aualiitia has brought that decision to the Tribunal for review.
3. The hearing was held on 9, 10 and 11 December 2019 (the last day by telephone). Mr Aualiitia gave evidence and was questioned by his solicitor, Mr Joel McComber of Sentry Law, and cross-examined by Ms Dale Watson of The Australian Government Solicitor, representing the Respondent. The Applicant’s fiancée, who will be called Ms ‘PU’ in these reasons, his sister, who will be called Ms ‘MB’, and a friend, who will be called Mr ‘CD’, also gave evidence and were cross-examined. On 11 December 2019 Dr Jaqueline Yoxall, consultant psychologist, gave evidence by telephone under section 33A of the Administrative Appeals Tribunal Act 1975 (Cth) as an expert witness.
4. Both parties lodged written Statements of Facts, Issues and Contentions with the Tribunal.
5. The Tribunal took into evidence documents collated by the Respondent (‘G’ documents), lodged on 30 October 2019 (Exhibit R1), supplementary (‘SG’) documents, lodged on 27 November 2019 (Exhibit R2), a statutory declaration dated 4 December 2019 but sworn in the Tribunal by the Applicant on 9 December 2019 (Exhibit A1), a bundle of Applicant’s documents (Exhibit A3), and a report of Dr Yoxall dated 3 December 2019 (Exhibit A2). The Applicant also handed up a document titled ‘Summary of Interactions with New South Wales Police’ relating to some of the SG documents, which was referred to by the Tribunal.

Legislative framework

6. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with regulation 2.52), and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Respondent accepted that Mr Aualiitia had made representations within the prescribed period.
7. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:

(7) For the purposes of the character test, a person has a substantial criminal record if:

...

(c) the person has been sentenced to a term of imprisonment of 12 months or more; ...

8. Section 501CA of the Act relevantly provides that:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

...

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

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

(b) the Minister is satisfied:

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

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

9. If the Tribunal finds that Mr Aualiitia fails the character test, the sole issue before the Tribunal becomes, then, whether there is another reason why the original decision to cancel the visa should be revoked. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, North ACJ stated, at [38]:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked...

10. The Tribunal had before it (G3, p 25) a National Police Certificate (the certificate) dated 13 February 2018 relating to the Applicant. The certificate, inter alia, recorded that on 31 August 2017 at the District Court of NSW at Parramatta Mr Aualiitia was convicted of the offence of Robbery in company, and sentenced to a term of imprisonment of 4 years and 5 months. The sentence was deemed to commence on 8 October 2015, with a non-parole period to conclude on 7 March 2019. The Court also ordered that Mr Aualiitia would be eligible at the end of the non-parole period to be released on supervised parole and that he pay compensation in the amount of $1,250.50.
11. The Tribunal also had before it (G4, p 27) the sentencing remarks of Her Honour Judge Herbert of the District Court of NSW dated 31 August 2017.
12. On the evidence, the Tribunal is satisfied that Mr Aualiitia has a ‘substantial criminal record’ as defined in section 501(7)(c) of the Act because he has been sentenced to a term of imprisonment of 12 months or more. On the facts of the convictions made against him and the sentence imposed in August 2017, the Tribunal finds that the Applicant fails the character test under section 501(3A)(a)(i) of the Act. Having made that finding, the remaining task is for the Tribunal to determine whether there is another reason why the mandatory cancellation of the visa should be revoked.

The Ministerial Direction

13. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The delegate who refused to revoke the cancellation of Mr Aualiitia’s visa consulted Direction No. 79 (‘the Direction’), made under section 499.
14. The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:

6.1 Objectives

(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

...

(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

15. Relevantly, the Direction includes the following principles at paragraph 6.3:

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

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) 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 be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

(4) 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.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, 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.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) 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.

16. In deciding whether or not to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’
17. Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’ The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.

The Applicant’s offending

18. Apart from the 2017 offending referred to above, there are three other offences recorded on the certificate.
19. In September 2009 at Liverpool Local Court, Mr Aualiitia was convicted of a speeding offence, driving a motor vehicle at a speed of more than 45 km/h above the posted speed limit. He was fined $800 and disqualified from driving for six months. On the same date he was convicted of Fail/refuse to undergo breath analysis and fined $500, placed on a 12 month bond and disqualified from driving for a further 18 months. This will be referred to as the 2009 offending.
20. In August 2012 at Bankstown Local Court, Mr Aualiitia was convicted of the offence of Affray, for which he was given a community service order of 100 hours. On the same occasion he was also convicted of the offence of Recklessly cause grievous bodily harm, for which he was sentenced to a term of imprisonment of 18 months, wholly suspended for 18 months, a community service order of a further 300 hours, and ordered to complete an anger management program. This will be referred to as the 2012 offending.
21. Apart from these three offences, Mr McComber said that the SG documents contain a range of other interactions with NSW Police which did not result in any further action. He said that, where this was the case, it was the Applicant’s submission that the Tribunal should not ascribe any, or any significant, weight in terms of assessing Mr Aualiitia’s risk of re-offending. Mr McComber submitted that the Tribunal should not put itself in the position of re-adjudicating these matters and declaring a verdict.
22. Ms Watson submitted that the Respondent was entitled to test these matters in cross-examination of the Applicant, and Mr Aualiitia was equally entitled to avail himself of the provisions against self-incrimination available to him, if he chose.
23. The Tribunal reminded the parties that it was undertaking an administrative task, not administering criminal justice, and that the Full Court of the Federal Court had found that decision-makers were entitled to take into account matters which did not lead to convictions in considering whether to exercise a discretionary power (see Taulahi v Minister for Immigration and Border Protection [2018] FCAFC 22, Robertson J at [22]). However, where the interactions with the police did not lead to the laying of charges or further action, that fact would significantly affect the amount of weight that the Tribunal placed on the matters and any submissions that may be made in relation to them.
24. The Tribunal advised Mr Aualiitia of his right, under section 62(4) of the Administrative Appeals Tribunal Act 1975 (Cth), not to answer a question that might tend to incriminate him, and that he could seek an adjournment to obtain legal advice if he wished to. Mr Aualiitia said he understood and, in the event, did not seek the protection available to him under this section.

Applicant’s evidence

25. Mr Aualiitia told the Tribunal he was born in New Zealand and came to Australia aged 8 to permanently settle here, with his family. He said at the time he had one older brother and one older sister. These older siblings had been born in Australia before his parents had briefly returned to live in New Zealand (the place of birth of his father; his mother being born in Australia). He said his home environment growing up was ‘toxic’, his father was a heavy drinker and the children were exposed to the sight of domestic violence.
26. Mr Aualiitia went to primary school in Sydney and then on to an all boy’s high school. He said that he showed some early talent with rugby league and his father put him up three age grades to try and improve his game, but put him under significant pressure to succeed in the sport, and would mentally and physically abuse him on occasions where he judged he hadn’t played well.
27. Mr Aualiitia was taken by Mr McComber to some of the documents produced by NSW Police in response to a summons. In terms of the earliest incident in December 2003 he said he and a cousin were in a shop. His cousin suddenly ran out of the shop, yelling at Mr Aualiitia to come with him, but he was at the back of the premises and was detained by the shop owner who called the police. It transpired that his cousin had stolen some lolly pops. Mr Aualiitia was taken home by the police but heard nothing more about the matter.
28. In terms of a later incident in June 2006 Mr Aualiitia said he was with two older friends. They started trying car doors of vehicles parked in the street. One opened. Mr Aualiitia said a car came along the road and, in a panic, he jumped into the back seat of the parked car to hide. The approaching car turned out to be a police car, which stopped. Mr Aualiitia ran away and hid, but was coaxed out by the police. Mr Aualiitia did not remember what transpired but it appears from the documents before the Tribunal (SG, p 97) that he was to be issued with a formal caution. However, the documents do not disclose whether the caution was ever issued.
29. Mr Aualiitia was taken to various other incidents reported in the SG documents. He did remember several occasions where he had been ordered by police to move on, often in company with groups of friends. There were reports in the documents of cars being reported stolen and the fingerprints of the Applicant being found in the cars when recovered. Mr McComber submitted to the Tribunal that these reports should not be given any weight by the Tribunal because the names of the vehicle owners were redacted and the Applicant may have a good explanation as to why his fingerprints may have been in the cars. Mr Aualiitia in his written statement denied ever stealing a motor vehicle, and reiterated that in his oral evidence.
30. In terms of the 2009 offending, Mr Aualiitia said that day he had been drinking and picked up his girlfriend, Ms PU. He said he was driving over the posted speed limit and a police car coming from the other direction did a U-turn and so he pulled over. He said that he had been playing rugby earlier in the day and had injured his lip in the course of the game, because he didn’t wear a mouthguard. He said this meant he was unable to give an effective sample by blowing into the roadside blood-alcohol apparatus. Mr Aualiitia said he ended up going to the police station, where he continued to have difficulties providing breath for analysis. He said the police officer told him if he was unable to comply, it would be entered as ‘high range’. He said he received a heavy fine and two years’ disqualification from driving.
31. In terms of his relationship, Mr Aualiitia said he met Ms PU at a party in 2007 and at the end of 2008 he told her that he wanted to commence a permanent relationship with her, and they decided to move in together. They have been together as a couple since that time.
32. In terms of his work history, Mr Aualiitia said he had trouble at high school studying because he was easily distracted and eventually undertook a life skills course, which gave him a white card. He said he signed up with employment agencies and, aged 16, got his first job working for a major soft drinks distributor. He said he eventually stayed working for this employer for six years, at first doing general store work and moving up to driving a forklift and scanning goods and general warehouse duties. After six years he asked his employer for a permanent position, but none was available so he went to work for a garden fertilizer company for a period, and then acquired a permanent job with an audio distributor (G7, p 70).
33. In terms of the 2012 offending, Mr Aualiitia said he was at a hotel for the birthday of a cousin. Many other members of his extended family were there. He said he could not remember all the details but heard a commotion and realised that a female cousin was involved. He said he decided to ‘be a hero’ and rushed in, punching a male twice, and then punching a second male who he said first punched him.
34. He said subsequently the police contacted him at work and asked him to attend the police station. Mr Aualiitia told them he was defending a female cousin. He was charged with assault and pleaded guilty. He said the police told him that one victim had bleeding on the brain and one had a fractured skull Mr Aualiitia said after being sentenced to 18 months’ imprisonment (wholly suspended) and 400 hours of community service for this assault, he found out that Ms PU was pregnant with their child. The Applicant said he had to do night shifts at work in order to fulfil his community service obligation during the day.
35. When asked directly by the Tribunal whether he remembered that the court also ordered him to undertake an anger management course, Mr Aualiitia said that he remembered doing the course and, from memory, thought it may have been a two day course.
36. He said in 2012 when he found out Ms PU was pregnant they were living in a studio apartment, trying to save a deposit to buy their own house. He said he was happier than his fiancée about the pregnancy; she was working full-time and studying part-time and he said Ms PU was worried that having a child would derail her career plans.
37. He said in 2014 he decided to enter into an arrangement, with his parents, to build a house and for the three of them to be the joint mortgagees of the property. Mr Aualiitia said the reason he did this was because his parents were too old to be good mortgage candidates. He said he moved home with Ms PU. Mr Aualiitia said one condition he imposed was that his older brother, who had been living with their parents at that time, could not live in the family home with them.
38. Mr Aualiitia said his older brother had major health challenges, diabetes and obesity. His brother drank alcohol excessively and took illicit drugs, mainly cannabis but also methylamphetamine. Mr Aualiitia said he did not want his brother around his new-born daughter.
39. Mr Aualiitia’s brother moved out, but soon after was tragically found to have died in the flat he had let. Mr Aualiitia said he felt that he was partly responsible for his brother’s death, because he was the one who had forced him to move out, and that his father had explicitly blamed him for it, as well. Mr Aualiitia told the Tribunal he took out a personal loan to pay for his brother’s funeral.
40. Mr Aualiitia said after his brother died he was on a ‘roller coaster’ of grief, becoming depressed and drinking and gambling excessively. He said that he and Ms PU wanted to move out of the house, but he couldn’t because he was a co-mortgagee, and his parents could not afford the payments without him. Mr Aualiitia said he undertook much of the parenting duties with their infant daughter, because Ms PU was studying in the evenings.
41. In terms of the 2015 offending, Mr Aualiitia said he was out with two cousins. They had a family celebration for a nephew’s birthday. The group decided to go to the local pub to play on the poker machines. When he got there he realised he did not have his own credit card, and only had a credit card which operated a joint account with Ms PU. He said because he’d had a few drinks he mixed up the credit card access code. He rang Ms PU, who had taken their daughter to her parents’ house to stay overnight, and they argued. She told him to go home and stop drinking.
42. Mr Aualiitia said that the group befriended a man who was playing on the poker machines. They struck up a conversation. This man was winning quite well, and he gave them some of his winnings to buy drinks and for them to play the poker machines.
43. At the end of the night, the man made his farewells and left. Mr Aualiitia said he went out to ‘ask him for his money’. The man was driving out of the hotel car park in his utility vehicle. Mr Aualiitia flagged him down and said he decided simply to ask him for a lift home. The man agreed. Mr Aualiitia said his cousin got in the cabin with the driver and he and his other cousin got in the flat tray for the short trip to his house. Mr Aualiitia said at the time he had undergone knee surgery for a rugby injury and his knee was painful.
44. As they drove, Mr Aualiitia said they missed the turn to his house. He said that he banged on the roof of the cabin, but they were playing music loudly on the utility’s radio and didn’t hear him. Soon after, Mr Aualiitia said the vehicle swerved and crashed into a verge. Mr Aualiitia said he remembered swearing because his knee was jarred and was sharply painful.
45. Mr Aualiitia said he was angry at the driver about crashing, and hurting his knee. They all got out of the vehicle. The man apologised to the three, and after some exchanges said words to the effect of ‘stop whinging, I was doing you all a favour’. He said his cousin said ‘what did you say?’ and then ‘chucked him on the ground and stomped him’.
46. After the assault, Mr Aualiitia said the other two ran off. He said he heard the victim cough. He said one of the others yelled at him to come, and he replied ‘you can’t leave him like this’, and sat the victim up to clear his passageways so he would not choke. He then noticed the victim’s wallet, and decided to take the money, the winnings he knew the victim had, which were in the region of $3,000.
47. Mr Aualiitia said he telephoned various people, none of whom answered. As a last resort he called his father. His father came and picked the trio up on a nearby road. He told his father they had been walking home, but did not mention the incident.
48. When they got to his house, he showed the other two that he’d taken the victim’s money. He said he tried to divide the money between the three, ‘so I didn’t feel so guilty’.
49. Mr Aualiitia said some weeks later he was contacted by police and asked to come to the Police Station. He said the police said they had enough evidence to send him to gaol. He said he went into custody. He was remanded from October 2015 until trial in August 2017.
50. Mr Aualiitia said he had never been to prison before. He said he decided to face what he had done, stay away from drugs and ‘do my time and get out’.
51. Mr Aualiitia said that before the trial he tried hard to avoid prison. He said he was missing his fiancée and his new daughter. Mr Aualiitia said his lawyer advised him to plead guilty to the offence of Stealing, but he said it was not an opportunistic crime and he would instead plead guilty to the offence of Robbery in company. Mr Aualiitia said: “as much as I didn’t intend [the victim] to get hurt, I was still part of it. I might as well have joined in.” He said this plea proposal was put to the Director of Public Prosecutions, who rejected it and chose to proceed with the charge of Robbery, inflict grievous bodily harm.
52. Mr Aualiitia said, after the trial and sentencing, he was asked his preference for prison. He requested being imprisoned in the Sydney metropolitan area so his family could visit him. He was instead sent to Glen Innes Correctional Centre in the Northern Tablelands. Mr Aualiitia said he liked the environment because of its bush setting, but it was hard for Ms PU and their daughter to visit. He said they would try and drive up each fortnight, but it was a road trip of around seven hours and he was worried about them on the roads. He insisted Ms PU also take another adult with her, to share the driving and for someone to keep watch over their infant daughter.
53. Mr Aualiitia said he got a job in the timber mill which the prison operated, partly because he already had a forklift licence.
54. Mr Aualiitia was asked about a reference in the SG documents to him being involved with contraband in the prison. He said he remembered being called to the prison office and told, without any notice, he was being transferred owing to an ongoing contraband investigation. He said he was taken to Grafton prison, and then transferred to Nowra. Mr Aualiitia said he never heard any more about the contraband investigation.
55. Mr McComber asked the Applicant whether he had undertaken rehabilitation courses. He said there was a limit on what was available in the remand period but he had an LSI-R assessment at Glen Innes and was then told he could not do further courses because he had been re-classified. Mr Aualiitia said he made contact with the prison chaplain who introduced him to ‘Positive Lifestyle’, a twelve week Salvation Army course which addressed various topics such as alcohol misuse, gambling, anger management, self-esteem, grief, loss and problem-solving. He said he found this course very beneficial.
56. In terms of his time in immigration detention, which he entered after the non-parole period of his sentence ended, Mr Aualiitia said he had been still dealing with grief from the death of his brother when he received news that his grandmother in Samoa had died; he had attended her ninetieth birthday celebrations in Samoa just before his arrest. Mr Aualiitia said, subsequently, he was talking to another cousin, who lived in Melbourne, on ‘facetime’. This cousin had a range of health problems and Mr Aualiitia said he noticed he looked pale and they were discussing that he should see a doctor when his cousin suddenly collapsed during the conversation. He was later told that his cousin had died, which Mr Aualiitia said was greatly distressing.
57. In terms of his daughter, Mr Aualiitia said he and Ms PU have established a routine whereby he rings his daughter each morning and tells her to get up, clean her teeth, etc. Ms PU scans all of his daughter’s school reading, and emails it to the Applicant and, in the evenings, he will take her through her homework.
58. He said, notwithstanding their separation, he has maintained a strong and close relationship with Ms PU.
59. In terms of what would happen regarding his relationship with his fiancée and his daughter if his visa is not restored, Mr Aualiitia said he could not give a concrete answer. He said Ms PU still has eighteen months to go in her university course and he would feel selfish to ask them to pack everything up and move to New Zealand.
60. Under cross-examination by Ms Watson, Mr Aualiitia was taken through several of the NSW police documents contained in the SG documents. He said he could not remember the details of many of the encounters but agreed that he had often been told to move on, especially when he was with groups of friends in a public park.
61. Mr Aualiitia said, in terms of the 2009 driving offence, he agreed Ms PU was in the car at the time and that his speeding, and drinking before driving, showed very poor judgement.
62. In terms of the 2012 offending, he said he did consider himself lucky that the Court decided to suspend the prison sentence imposed on him. He agreed that he had an alcohol problem at the time, which contributed to his conduct in assaulting the two males.
63. Ms Watson referred Mr Aualiitia to the report of a parole officer in which he said he stopped drinking, and he said that he did abstain for a period of ‘a couple of months or so’, and then reverted.
64. In terms of gambling, he said he had two significant wins on poker machines. With the first winnings he bought a car, and then a few weeks later he had another big win. Mr Aualiitia said, looking back, he wished he had not won, because he believes it began a gambling problem. He said he and Ms PU knew that he had a problem and the way they controlled it was that Ms PU would control all his finances, and she would give him access to money for his day-to-day expenses when he needed it.
65. In terms of the 2015 offending, Ms Watson drew Mr Aualiitia's attention to the finding of the sentencing Judge that there was an element of planning in the offending. The Applicant said that he took responsibility for taking the money and did not disagree that it was his plan to take the money from the victim, that evening.
66. Ms Watson took Mr Aualiitia through the report about the contraband investigation at the Glen Innes prison and Mr Aualiitia denied being part of any arrangement with other prisoners.
67. In terms of his travel out of Australia since arriving to settle, Mr Aualiitia was taken to his Departmental movement records (G27, pp 144-145). Mr Aualiitia said he visited New Zealand in 2004 for the birthday of an aunt, and believed he visited Samoa in 2006, and in 2012 for an uncle’s funeral. He said he visited New Zealand in 2008 for a cousin’s wedding and in 2015 for another wedding. As mentioned above, Mr Aualiitia said he also visited Samoa in 2015 for his grandmother’s ninetieth birthday celebrations. He confirmed that he had relatives in Auckland, but was not sure they would be in a position to assist him if he was repatriated.
68. In answer to direct questions from the Tribunal, Mr Aualiitia said since he has been in custody the partner of one of his sisters had been assisting with the mortgage repayments. He confirmed to the Tribunal that two of his sisters had children, three children each, all of whom were minors. He said some of them had been able to visit him since he has been in immigration detention.

Evidence of PU

69. Ms PU gave evidence before the Tribunal. She stated that she works as a company secretary for a large law firm in Sydney. She said she is studying a Bachelor of Criminology and Bachelor of Laws combined degree at a university in NSW.
70. In terms of their daughter, Ms PU said that, before he went into custody in 2015, Mr Aualiitia was always responsible for night duties, because she was occupied with her law studies in the evenings. She said he was a good and attentive father.
71. Ms PU said that she acts in a role of carer for her parents. She said her father is a pensioner and her mother is close to pension age, but suffers from significant arthritis. Ms PU said that her parents often help out with attending school events for their daughter, and she has lived with her parents since the Applicant was incarcerated.
72. In terms of the 2009 offending, Ms PU confirmed she was in the car the day Mr Aualiitia sped and was pulled over by police. She said she remembered he complained he had a lip injury and was trying to use the breath machine. Ms PU said after the charge was laid, she told Mr Aualiitia that he needed to learn from this experience, and asserted that Mr Aualiitia has had no further drink-driving, or driving, offences since that day.
73. In terms of the 2012 offending, Ms PU said she was attending the birthday celebrations that evening, but was not in the same place as the Applicant when the fracas took place and therefore she did not witness the fight involving Mr Aualiitia. She said she became aware later that Mr Aualiitia had punched two people and that he told her that he was coming to the defence of a female cousin. She agreed in answer to a question from the Tribunal that it was a disproportionate response.
74. Ms Aualiitia said when she found out she was expecting a child, she told her fiancé that he needed to change his behaviour, to ‘clean up his act’, but she knew his ‘coping mechanisms would not change overnight’.
75. In terms of the 2015 offending, Ms PU said she had family visiting from Melbourne that night, so she had arranged to stay with her parents. She said she remembered Mr Aualiitia ringing her that night seeking funds, but ‘he knew I wouldn’t facilitate that’ and she told him it was late and she wanted to go to sleep. When she found out about the charges, she said she was shocked and in disbelief.

Evidence of MB

76. The Applicant’s sister, Ms MB, gave evidence. She said she was very close to her brother growing up. She said she became pregnant when young, and Mr Aualiitia was very helpful to her with the new challenges of parenthood. She said her brother had worked consistently from a young age and had been financially supportive of their parents. She said his approach is always to help someone out when in need.
77. Ms MB said that they had one younger sister, who is aged 17. She wants to attend university when she completes school, and Mr Aualiitia was very supportive because it is a different perspective on life and an opportunity that they had ever had.
78. Under cross-examination, Ms MB said that she was vaguely aware of some of her brother’s earlier interactions with police, but she was younger and not particularly interested at the time. She said that their father has high standards and put pressure on the Applicant to achieve. Ms MB said she felt Mr Aualiitia ‘hung out with the wrong crowd’ when young. She confirmed that their older brother had major health and drug problems and that Mr Aualiitia had tried to steer him away from that.
79. Ms MB said she saw her brother ‘spiralling’ with grief when their brother passed away. She said the family, including her, at the time placed blame for the death on Mr Aualiitia, for which she is now not proud.

Evidence of CD

80. Mr CD, a friend of the Applicant, gave evidence. He said they met through club football when young, and their families became friends.
81. Mr CD said he was aware of the Applicant’s criminal history and the serious nature of the offences. He said he knew that Mr Aualiitia had a problem with gambling and alcohol, but that he had never seen him angry or violent.
82. Mr CD said he had visited the Applicant in prison on several occasions, and in immigration detention.

Evidence of Dr Jacqueline Yoxall

83. Dr Yoxall gave evidence that she undertook a psychological assessment of the Applicant on 26 November 2019 via teleconference, and produced a report dated 3 December 2019, which was before the Tribunal (Exhibit A2).
84. Under cross-examination Ms Watson took Dr Yoxall through some of the SG documents and asked her if incidents of police asking Mr Aualiitia to move on when drinking in a public place would indicate an alcoholic issue in the long-term. Dr Yoxall indicated there was that potentiality.
85. Dr Yoxall said that coming into contact with law enforcement officers is one indicator of alcohol misuse disorder but that does not alter the conclusion in her report because she has found that the need for rehabilitative services is substantial in any case.
86. Dr Yoxall said that there was a need for the Applicant to undertake an evidence-based rehabilitation programme, and her recommendation was a residential programme tailored to individual needs, such as how to manage anger, how to handle stress and, in his case, how better to cope with grief and avoid gambling.
87. Dr Yoxall said it was her opinion that Mr Aualiitia had a moderate level of insight, which had improved whilst he has been in custody, but there was room to improve further (in terms of preventative factors).
88. Dr Yoxall was asked about some of the NSW police incidents which did not eventuate in charges. She said risk assessment relates to arrests and convictions, and this material relating to uncharged incidents does not change where she assesses the Applicant fits in terms of re-offending.
89. Dr Yoxall said her conclusion was there was a low risk of Mr Aualiitia re-offending and she would not move that conclusion any higher, and that a factor to consider in rehabilitation is maturation. In her opinion the Applicant would be less likely to succumb to peer pressure as it appears he may have done in terms of some of the juvenile interactions with police.
90. Dr Yoxall said it was her conclusion that Mr Aualiitia had built a strong relationship with his daughter, including whilst in custody, and had re-evaluated his life, but it was her view that he should undertake a further anger management programme because he could not remember the details of the teachings from the earlier, Court-ordered, programme he had undertaken.

CONSIDERATION OF THE DIRECTION

Primary consideration ‘A’ – Protection of the Australian community (paragraph 13.1)

91. The Direction requires that decision-makers should have regard to the principle of protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The Tribunal must consider the nature and seriousness of the non-citizen’s conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
92. In terms of the nature and seriousness of the conduct, violent crimes are viewed very seriously (see paragraph 13.1.1(2)(a)). There is no question that the assaults inflicted by the Applicant on two persons as part of the affray in 2012 were violent, and they were disproportionate to any actions Mr Aualiitia may have perceived had been taken in respect of his female cousin, in whose aid he had rashly interceded.
93. However, the Tribunal must also keep in mind the finding that the offence was based on recklessness, it was not found by the Court that the Applicant had formed the intention of inflicting the injuries, serious as they undoubtedly were, on the two victims that day. In addition, the Court determined that while a sentence of imprisonment was warranted, in its judicial discretion that imprisonment was wholly suspended and a substantial requirement, in relation to the two offences, of 400 hours of community service was imposed. On the evidence before the Tribunal, Mr Aualiitia completed that obligation, and did so by working the night shift so that he could complete the court-ordered community work during the day.
94. In terms of the 2012 speeding and drink-driving offences, Mr McComber rightly submitted that it was accepted these were serious. Mr Aualiitia gave evidence that the road was clear that evening, but that is no exculpation. He had drunk too much to drive, on his own admission, and had then gone to pick up Ms PU and then drove at a speed substantially in excess, in fact 55 km/h in excess, of the posted speed limit. That not only was highly dangerous to other road-users, but he placed Ms PU, and himself, in the way of potential serious harm and injury.
95. It is not possible for the Tribunal to assess Mr Aualiitia’s level of intoxication that night, because he was charged with high range drink driving on the basis that he did not (or on his evidence could not) provide a breath sample. However, I am satisfied on the evidence that it is likely that he was well over the legal limit. I note, however, that the certificate illustrates that these are his only driving, and only drink-driving offences.
96. In terms of the events that took place in 2015, the only description that the Tribunal can place on them is that they were sordid. The sentencing Judge, Her Honour Judge Herbert, in her sentencing remarks (G4, pp 28-29), stated:

The actions of the offenders were to ingratiate themselves with the victim and remain close to him with a view to, at the right opportunity, rob him of his winnings. Once Ben and Kalisi Aualiitia [the co-accused] joined the victim in the poker machine area at least one of the offenders remained near the victim until he went to the bar to collect his final payout. I find that Ben Aualiitia primarily orchestrated the robbery that was to take place. ... As the group were leaving they acted in such a way so as to ensure that they could create the opportunity to be alone and isolated with the victim.

97. The Judge found that the injuries sustained by the victim were ‘life-changing and would have ongoing impact upon him’.
98. However, the Tribunal must take care to consider the whole of the findings of the Court. The jury found the Applicant not guilty of the offence of Robbery, inflict grievous bodily harm, but guilty of the alternative crime of Robbery in company contrary to section 97(1) of the Crimes Act 1900 (NSW).
99. The Judge noted that the offence for which Mr Aualiitia was convicted was the same offence to which he had offered to plead guilty prior to the trial, and as such that he was entitled to a 25 per cent discount of his sentence (G4, p 27).
100. Her Honour stated (G4, p 30):

The verdict of the jury is consistent with their finding that Ben Aualiitia did not reasonably foresee the likelihood of such serious injuries being inflicted upon an extended joint criminal enterprise basis. All the injuries inflicted were inflicted by Kalisi Aualiitia. Ben Aualiitia was able to see the violence that was inflicted upon the victim. It is clear that Ben Aualiitia, after seeing the violence that had been inflicted, stole the victim’s money consistent with a plan in place from the Crossroads Hotel. Ben Aualiitia was aware of the level of violence and that the victim appeared to be injured. On the version that Ben Aualiitia provided and the evidence of Pale Aukuso he attempted to place the victim in the recovery position.

101. Later, the Judge stated (G4, p 36):

Overall Mr Jones’ [a psychologist who assessed the Applicant] assessed Ben Aualiitia as a low risk of reoffending but was of the opinion that he should address his unresolved grief associated with the death of his brother and his alcohol use. I accept that he has reasonable prospects of rehabilitation. Given his history and the role played in the offence, I am not satisfied that he is unlikely to commit other offences. This would depend on his level of involvement with a treatment plan.

102. The Tribunal is satisfied that, on the findings of the Court, in terms of paragraph 13.1.1(1)(e) of the Direction there has been no trend of increasing seriousness. The circumstances surrounding the robbery of the victim are reprehensible, and the Judge found that Mr Aualiitia’s moral culpability for that offence is high, because the robbery was premeditated, not opportunistic. However, it is important to separate the awful nature of the injuries inflicted on the victim from the conduct of the Applicant. The Court found that it was his cousin who was solely responsible for those injuries, and the Tribunal cannot contradict that finding.
103. There was evidence before the Tribunal that Mr Aualiitia had downplayed the premeditated nature of the robbery offending, and that is evident from some of the material before the Tribunal, but he did not do so in his oral evidence, and emphasised that he felt ashamed for what he did, especially as the victim was clearly in a bad way when he took the victim’s money.
104. While I may accept Mr Aualiitia’s evidence that his two cousins were shocked when he revealed to them that he had taken the money, that shock in my estimation was not as though they had not, all three, formed the robbery intention much earlier in the evening. The reaction he reported was probably more because the Applicant had still taken the money, after the crash and the assault.
105. Lest there be an apprehension that the Tribunal should have regard to Mr Aualiitia’s actions that night in not seeking first aid for the victim, the Tribunal takes into account the judgment in Lowns & Anor v Woods & Ors (1996) Aust. Torts Reports 81-376. There is no common law duty to rescue, or come to the aid of a person, although there may be a moral duty. Sordid as I have labelled this incident to be, Mr Aualiitia was not the person who inflicted the injuries and on his evidence, both to the Court and to the Tribunal, he did at least place the victim in the recovery position and cleared his airways. This, the Judge remarked, was also the evidence of Pale Aukuso. Clearly Mr Aualiitia could have done more, and it is a reasonable conclusion that he should have. I note that the Court considered whether the victim was in the category of a vulnerable person in terms of deciding whether the offence had aggravating circumstances in terms of sentencing, and determined he was not (G4, p 33).
106. In terms of the risk to the Australian community should Mr Aualiitia re-offend, Dr Yoxall and Mr Jones’s professional opinions were that it was a low risk. Dr Yoxall wrote (Exhibit A2, p 19):

At the current time, actuarial risk assessments indicated that Mr Aualiitia’s risk of violent reoffending is low and his risk of general reoffending is low. In my view this is a reasonable assessment of Mr Aualiitia’s risk of reoffending and risk of harm to society. However this is [sic] conclusion of ‘low risk’ is dependent on his capacity to abstain from alcohol misuse (and gambling). Engagement in the recommended community rehabilitation would further reduce the risk of reoffending.

The Tribunal notes that the sentencing Judge was not satisfied that Mr Aualiitia was unlikely to commit other serious offences. The Tribunal does note that, accepting that there has been a level of juvenile delinquency in the Applicant’s background, there has been no particular pattern of offending. There has been one serious drink-driving/speeding offence in 2009. Three years later in 2012 there has been one serious, if reckless, assault of two persons in an affray. Three years after that, in 2015, there was one planned robbery offence. The Tribunal notes the professional opinion of Dr Yoxall that the risk of re-offending would increase if the Applicant does not take steps to address his anger management issues and any residual alcohol problems.

107. The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa, but not heavily so.

Primary consideration ‘B’ – Best interests of minor children in Australia affected by the decision (paragraph 13.2)

108. Both parties did not contest that this primary consideration weighs in favour of the Applicant. There was consistent evidence from Mr Aualiitia, Ms PU, Ms MB and (to the extent that she could assess it) Dr Yoxall that the Applicant is an attentive and loving father. The lengths to which Ms PU has gone, to ensure regular contact between their daughter and her father while the Applicant was, first, in prison and more recently in immigration detention are noticeable, and commendable. Equally, the quite elaborate arrangements that both parents have undertaken to maintain Mr Aualiitia’s daily presence in his daughter’s life by him helping her start the day, and with her homework, even though in detention, are particularly impressive.
109. The Direction requires that the Tribunal also take into account the best interests of other minor children. In that respect, the Tribunal notes that several of Mr Aualiitia’s siblings have minor children (G7, p 64), as do the siblings of Ms PU. In all, apart from his own minor daughter, nine relevant minor children are recorded in the Applicant’s Personal Circumstances form, would appear still to be under the age of 18 at the time of this decision. All of these children are recorded as being Australian citizens.
110. The evidence was that he maintains some contact with all of them, and some of them have visited him in immigration detention. There are testimonials in the G documents from some of his nieces and nephews about the warm relationship they have with their uncle. However, each of these children has others performing parental roles so, under paragraph 13.2(4)(e) of the Direction, although it is accepted the repatriation of the Applicant would have some detrimental effect on them, less weight in this consideration is placed on these particular avuncular relationships than is placed on the Applicant’s relationship with his own daughter.
111. In addition, the Tribunal notes that one sibling of the Applicant, Mr Aualiitia’s youngest sister, is aged 17. This sister is an Australian citizen (G7, p 67) who turns 18 years of age in April 2020. The evidence of Ms MB was that this sister is hoping to embark on tertiary study when she finishes high school, and that there would be a financial effect on her ability to do this if the Applicant was repatriated. The details of what this effect would be were not unfolded in detail, but the Tribunal accepts that this is a relevant factor to take into account. Apart from the fact that Mr Aualiitia does not play a parental role in relation to his younger sister, the Tribunal must also under the Direction take into account the length of time a minor child had before turning 18, so in relation to the Applicant and his sister, this lessens the specific weight that the Tribunal places on the best interests of Mr Aualiitia’s minor sister.
112. On balance, the Tribunal is satisfied that the Applicant has played a positive role in the life of his daughter and continues to do so. Separation from her, even if it was not a permanent separation if Ms PU decides to relocate to New Zealand on the completion of her studies, would be particularly hard, and against his daughter’s best interests.
113. The Tribunal considers that this primary consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.

Primary consideration ‘C’ – Expectations of the Australian community (paragraph 13.3)

114. The Direction requires a decision-maker to have ‘due regard to the Government’s views’ on whether, because of the nature of offences a non-citizen has committed, the Australian community would expect that the person not hold a visa.
115. The recent Full Court of the Federal Court decision, FYBR v Minister for Home Affairs [2019] FCAFC 185 has laid down the latest judicial pronouncements in regard to how this consideration should be interpreted by decision-makers. Essentially, it is not for the Tribunal to make its own assessment of what Australian community expectations are, or may be perceived to be. It is a ‘norm’ that persons should be expected to obey Australian laws – non-citizens and citizens alike.
116. As such, this primary consideration weighs against revoking the mandatory cancellation of the visa. However, a decision-maker may nonetheless consider the amount of weight that should be attached to this consideration in the totality of consideration of the Direction, and that weight may vary according to the circumstances.
117. The Tribunal considers that the community would view dimly the offence that led to the visa being cancelled. Separating out the violence, which the Court found was not inflicted by Mr Aualiitia, nonetheless his decision to take the victim’s money when the person was lying on the ground with serious injuries offends against the decent conduct expected of any person, citizen or non-citizen alike.
118. This consideration weighs against revoking the mandatory cancellation of the visa.

Other consideration ‘A’ – International non-refoulement obligations (paragraph 14.1)

119. Parties both submitted that this consideration was not relevant. The consideration is engaged when a person may be placed at risk of a specific type of harm if repatriated to a place. The Tribunal is satisfied that Mr Aualiitia would be repatriated to New Zealand, his country of citizenship, if his visa is not restored, and finds that this consideration is not engaged.

Other consideration ‘B’ – Strength, nature and duration of ties [to Australia] (paragraph 14.2)

120. The Respondent accepted that Mr Aualiitia has significant ties to Australia. On the evidence of the movement record, he has been residing in Australia for around 19 years, with only short and infrequent absences abroad to New Zealand and Samoa. Mr Aualiitia’s partner and their daughter are both Australian citizens and reside here. The Applicant’s parents, surviving siblings and many members of his extended family reside in his country; all but three (the Applicant’s father and two siblings) are Australian citizens. Mr Aualiitia gave evidence that he did have some relatives in New Zealand, but most had immigrated to Australia.
121. The Tribunal must give more weight to time a non-citizen has spent contributing positively to the community. The Applicant has played competitive rugby league football, and on the evidence before me was talented and successful, until knee injuries ended his career. It is particularly notable that Mr Aualiitia has maintained consistent full-time employment from when he left school at the age of 16 until he was arrested in 2015, and there was evidence before the Tribunal from a former employer that he was a good employee.
122. The Respondent submitted that the Applicant “was involved in criminal activity and other anti-social behaviour since 2003” and so less weight should be given to this consideration. The Tribunal does not accept that statement, as put. The first conviction in the certificate is dated 2009; uncharged interactions with the police cannot reach the level, in the Tribunal’s view, to be classified as ‘criminal activity’. It may be fair to say that Mr Aualiitia was involved in some anti-social activity, and I may accept Ms Watson’s proffered description that some of the conduct could be labelled as juvenile delinquency, but there is also evidence, by the lack of later interactions (other than the specific convictions in the certificate) that, as he matured, the Applicant did largely grow out of this sort of behaviour.
123. In addition, I note that Mr Aualiitia, with his parents, built a house and entered into a mortgage and had been apparently honouring his financial obligations in that regard before he was arrested in 2015, which indicates a level of responsibility not always found in persons of his age.
124. On balance, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.

Other consideration ‘C’ – Impact on Australian business interests (paragraph 14.3)

125. The Direction requires decision-makers to consider the impact on Australian business interests if a non-citizen’s visa is not restored, noting that an employment link would only generally be given weight where non-revocation would significantly compromise the delivery of a major project or service in Australia. Both Mr McComber and Ms Watson submitted that this consideration was not relevant in Mr Aualiitia’s case.
126. The Tribunal notes that although Mr Aualiitia has a good record of employment, this does not rise to the level that engages this consideration. The Tribunal finds that this consideration therefore weighs neutrally.

Other consideration ‘D’ – Impact on victims (paragraph 14.4)

127. The Direction requires decision-makers to take into account the views of victims of a non-citizen’s criminal behaviour, where that information is available. There was no evidence before the Tribunal that any of the three persons (i.e. the two victims of the assault and the victim of the robbery) associated with the Applicant’s offending knew of the cancellation of Mr Aualiitia’s visa, so this consideration is not engaged.
128. The Tribunal finds that this consideration weighs neutrally.

Other consideration ‘E’ – Extent of impediments if removed (paragraph 14.5)

129. The Direction requires decision-makers to consider the extent of any impediments a non-citizen may face if repatriated, in establishing themselves and maintaining basic living standards in the context of what is generally available to other citizens of the country, taking into account the person’s age and health, any substantial language or cultural barriers, and any social, medical and economic support available to them in that country.
130. There was no evidence before the Tribunal that Mr Aualiitia was other than healthy. He would not have any language or social barriers if returned to New Zealand, and would, as a New Zealand citizen, have the same access to social welfare services and similar supports as other citizens.
131. It is accepted by the Tribunal that there would a significant emotional effect on the Applicant from being separated from his partner and daughter, and to some extent, other members of his family, if he is repatriated. It is also the Tribunal’s conclusion that, with his good and consistent work history and set of skills, Mr Aualiitia should not have too much difficulty in securing and maintaining gainful employment in New Zealand.
132. The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, but only very slightly so.

Summary and conclusion

133. The Tribunal has carefully considered all of the considerations, in terms of deciding whether to exercise the discretion inherent in section 501CA(4) of the Act. I have found that primary consideration ‘A’ weighs against restoring the visa, but not heavily so. I have found that primary consideration ‘B’ weighs heavily in favour of restoring the visa, and primary consideration ‘C’ weighs against restoring the visa. Of the other considerations, I find that four are not engaged and weigh neutrally. Of the two other considerations, one weighs relatively heavily in favour of restoring the visa, and one weighs slightly in favour.
134. Given the sporadic nature of the offending, the psychological clinical assessment (by both Mr Jones in 2017 and Dr Yoxall recently) of a low risk of re-offending, and the particular effect the revoking of the visa would have not only on the Applicant’s partner and daughter, but on other members of his family, I have decided that I am satisfied, taking into account, cumulatively, the matters I must consider, that there is another reason in the circumstances, under section 501CA(4)(b)(ii) of the Act, that the decision not to revoke the mandatory cancellation of the visa should be set aside. I so find.
135. The Applicant is on notice that, once the visa is restored, he will be the holder of a temporary visa. Unless he takes steps to modify his behaviour and ensure he does not re-offend – in any manner – the likelihood of his immigration status being revoked will loom again, and the outcome would likely be able to be predicted.

Decision

136. The Tribunal decides that:
     1. the decision under review, being the decision of the Respondent dated 9 October 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) is set aside.
     2. in substitution, the cancellation of the Applicant’s visa is revoked under section 501CA(b)(ii) of that Act.

I certify that the preceding 136 (one hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D.J. Morris

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

Dated: 20 December 2019

Date(s) of hearing:	9, 10 and 11 December 2019
Solicitors for the Applicant:	Mr J. McComber, Sentry Law
Solicitors for the Respondent:	Ms D. Watson, Australian Government Solicitor