Migration Act 1958

Direction no. 90 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 8 March 2021

1. After I delivered my oral reasons on 7 June 2021, a request for written reasons was received by the Tribunal on 8 June 2021. I now publish my written reasons, which are the reasons I gave orally with minor edits.
2. This is an application by Mr Ambir Rai seeking a review of the decision of the respondent's delegate dated 25 March 2021[1]. By this decision, the delegate refused in his or her discretion to revoke the mandatory cancellation of Mr Rai's Class XB subclass 200 refugee visa. Mr Rai's visa had been cancelled mandatorily under s 501 of the Migration Act, 1958 (the Act) because Mr Rai, whilst drunk, had committed a serious offence of violence involving the multiple stabbing of an acquaintance. Mr Rai was sentenced in the District Court of SA to a term of imprisonment of greater than 12 months and he was required to serve a part of that term in prison on a full-time basis. There is no doubt that Mr Rai's visa was appropriately cancelled in accordance with the Act's mandatory provisions in this regard.

1. The delegate had to decide whether he or she should revoke the mandatory cancellation. This question called for the exercise of a statutory discretion. As I have indicated, the delegate refused to exercise his or her discretion in Mr Rai's favour and the visa-revocation decision was confirmed.

1. Hearing the matter afresh on the evidence adduced before me, I must decide whether to affirm or set aside the decision under review. The hearing before me is known, technically, as a de novo hearing on the merits. This means that I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate's reasons if that is the correct or preferable decision on the evidence before me; equally, I may affirm the decision under review notwithstanding the presence of an error in the delegate's reasons if that is the correct or preferable decision on the evidence before me. At the hearing before me, Mr Rai represented himself; the respondent was represented by Mr Gerrard.

1. I have decided to set aside the decision under review and to substitute a decision that Mr Rai's visa cancellation be revoked. I set out below the background facts and then my reasons for this decision.

1. Mr Rai gave evidence before me, which I largely accept. He was truthful and measured in his evidence. He was born on 18 October 1998 and was, therefore, 22 years of age at the time of the hearing before me. Mr Rai was born in Nepal. He has no family there. Ethnically, Mr Rai is not Nepalese, but is, rather, Bhutanese. Mr Rai's parents had fled Bhutan to Nepal before his birth and he was born in a Nepalese refugee camp. When he was a baby, his father left his mother. His mother eventually remarried and, as I understand his evidence, Mr Rai ended up being raised by his maternal grandparents, who were living some distance away from his mother and stepfather. Mr Rai never lived with his mother and stepfather in the camp, and he gave evidence that he only visited them from time to time. The evidence he gave was to the effect that his stepfather did not want him to live with them at that time, as he and his mother had started a new family together.
2. Mr Rai indicated that life in the refugee camp was good, although very poor. He nevertheless enjoyed it there when he was young. I accept that he was living in very difficult circumstances in the camp although he was happy enough as a young boy there. He went to school in Nepal and has learned to speak and write Nepali. He has three younger half-brothers and one younger half-sister.

1. Mr Rai's stepfather and mother applied to emigrate to Australia and were successful. Mr Rai did not emigrate with them but came later with his grandparents, in 2010, when he was about the age of 11. After six or seven months in Darwin, which he said he enjoyed, Mr Rai moved to Adelaide with his family. I note that Mr Rai's grandfather died when Mr Rai was approximately 12 years of age. He died unexpectedly when hit by a taxi.

1. Mr Rai's stepfather cannot work as his right arm was injured in Nepal. His mother does not work either. So far as their history in Adelaide is concerned, the family lived first in a southern suburb of Adelaide. Mr Rai attended an English language school, where he sought to improve his English-language skills, but he also took regular curriculum subjects. He completed Year 7 there. He went on to a different High School, and he told me he had friends there and progressed to Year 10.

1. At that point, his parents moved to a northern suburb of Adelaide. They tried to enrol him in a High School close by, but Mr Rai's enrolment was declined. He had a history of non-attendance. He was, however, accepted into a Senior College, and he began Year 11 there. He did not complete Year 11 as he regularly failed to attend classes.

1. Mr Rai would, instead, socialise, and drink and smoke with friends. These were the friends he had made at his former High School. Mr Rai began to drink heavily at this time. He consumed beer, wine, and spirits. He received pocket-money from his family, which he contributed to pooled resources used by his group of friends to procure alcohol illicitly. Mr Rai said that he was getting drunk at this time, that his parents did notice his drinking, but that he would always deny it. In particular, he said his mother had arguments with him where she demanded that he stop drinking and start attending church services with the family. His response was always to deny the allegation of drinking.

1. Mr Rai said his stepfather would also get involved. In answer to a question from me, Mr Rai said that his stepfather did fulfil the role of a true father in his life. Accordingly, I proceed on the basis that both "parents" had arguments with Mr Rai about his drinking. I shall continue, however, to refer to Mr Rai's stepfather as a "stepfather" in these reasons for the sake of clarity.

1. Mr Rai indicated in his evidence that at the time he just wanted to have fun, but he now sees that it was all a waste of time. He lasted six months only at the Senior College. He was expelled from the College for poor attendance. Needless to say, he was failing his courses.

1. Mr Rai said that he then began to increase the time he spent with his friends, and he drank even more. He stayed away from home periodically: he would sleep over at a friend's house. Some of the people with whom Mr Rai was associating at this time were four or five years older than he was. Mr Rai did attend another Senior College for a short while but stopped after two to three months.

1. At this stage, Mr Rai was about 18 or 19 years of age. He was using Centrelink benefits to fund his lifestyle, centred upon socialising with friends and abusing alcohol. He said to me that at this stage he was meeting his friends every day or every second day. It was a regular group, some were older and some about his age. He was drinking a great deal and was regularly hung over. He indicated to me that a drinking session might see him consume two to three litres of beer or wine.

1. I do not doubt that the circumstances in the family home must have been extremely tense. There must have been serious arguments in the family between Mr Rai and his parents.

1. Mr Rai gave evidence concerning one serious incident. In 2016 Mr Rai had wanted to use his stepfather's phone. When his stepfather refused, Mr Rai punched a hole in the door of his stepfather's bedroom. The next day, his stepfather called the police. I infer from this that the stepfather rightly viewed this incident, in context (including Mr Rai's past behaviour), as very serious and warranting police intervention.

1. Mr Rai gave evidence that he did not speak with his stepfather and that he cannot remember anything about the incident. At this point in his life, Mr Rai was drifting further and further away from his family, and he was regularly abusing alcohol. He said that his mother asked him to find work and that she and his stepfather stopped giving him an allowance; but Centrelink benefits enabled him to continue to smoke and drink.

1. I turn now to consider Mr Rai's history of offending and other misconduct. In August 2016, I understand Mr Rai, while living at home, held a large Ghurkha blade to the throat of his stepfather during a domestic altercation. In November 2016, Mr Rai was drunk and punched a hole in the door of his stepfather's bedroom. This is an event to which I have referred earlier in my reasons. On 25 November 2016 Mr was convicted in the Children's Court sitting in Elizabeth of an aggravated offence of assault.[2] No conviction was recorded, however, but Mr Rai was required to enter into a bond to be of good behaviour for six months.

1. On 22 December 2016 Mr Rai was found guilty of estreatment of bail in the Elizabeth Magistrates Court. A penalty (in the form of a recognizance forfeiture) of $500 was imposed.

1. These two offences did not attract particularly onerous penalties. But it is important in my opinion to note that Mr Rai had now appeared before the Courts, and, although young, he ought to have appreciated how serious his antisocial behaviour had become for him. I am particularly concerned about the incident of family violence involving the holding of a blade against Mr Rai's stepfather's throat. This is a very concerning incident.

1. To complete the picture of serious antisocial behaviour at this point, I accept that Mr Rai was involved in an altercation in Hindley Street in August 2018 where CCTV-footage shows him fighting. He entered a police station to speak about the event. He was cautioned by the police and no further action was taken in relation to the matter.

1. On 23 April 2020, Mr Rai was convicted before the Elizabeth Magistrates Court of aggravated assault using an offensive weapon. He was convicted and placed on a good behaviour bond for 18 months. Mr Rai gave evidence that he had punched a bus driver, and he pleaded guilty to the offence. He was drunk at the time and at this stage, if not earlier, was regularly involved in cannabis abuse. Again, I note that Mr Rai ought to have appreciated, even though he was young, that his antisocial behaviour was now escalating and had extended to a drunken assault upon a stranger.

1. I now turn to consider the fourth offence which is listed in Mr Rai's Criminal History Check. This is the offence that resulted in the cancellation of his visa. On 16 November 2020, Mr Rai was found guilty of intentionally causing harm in July 2019. He was sentenced to 2 years four months and 25 days imprisonment with a non-parole period of one year and four months according to the record.

1. The incident involved the stabbing of an acquaintance. This offending took place on 3 July 2019. I have read the sentencing remarks that were in evidence before me[3] and I accept them. In essence, Mr Rai and this acquaintance, together with a friend of Mr Rai's, had been drinking in the course of the day. The acquaintance accompanied Mr Rai and his friend back to Mr Rai's temporary accommodation. More alcohol was consumed. The acquaintance asked for and received permission to occupy Mr Rai's room for the night. At some point Mr Rai entered the room and for whatever reason an argument ensued. The acquaintance punched Mr Rai and split his lip. Mr Rai then went to the kitchen, took a knife with a long blade, and stabbed the acquaintance multiple times in the back. A friend who had witnessed the attack pushed Mr Rai aside. The police were called, and Mr Rai was arrested. He pleaded guilty to the charge.

1. The sentencing judge noted that the offence was a serious one in that it attracted a maximum penalty of 13 years' imprisonment. Mr Rai had entered an early guilty plea and was entitled to a discount of 40 per cent. At the time of his sentencing, Mr Rai had been in custody for a period of one year, four months and 14 days.

1. Forensic analysis showed that Mr Rai's blood alcohol content at the time of the offence was 0.11 per cent. I note that the sentencing Court referred to the fact that Mr Rai had been introduced to alcohol by negative peers when he was about 13 years of age.

1. The sentencing Court also referred to the fact that Mr Rai, at the time of his offending, was no longer living at home. Mr Rai gave evidence that he had in fact left home after a final argument with his stepfather. Mr Rai came home one day to find his bags packed: he was ordered to leave.

1. The sentencing Court accepted that the offence was committed while Mr Rai was angry after having been punched and whilst he was under the influence of alcohol. The Court referred explicitly to the fact that these factors did not excuse the offending but did provide a context for the circumstances leading up to it. The sentencing Court clearly regarded the offending as very serious and sentenced Mr Rai to a term of imprisonment of four years, which, when discounted by 40% for an early guilty plea, led to the sentence of two years four months and 25 days to which I have earlier referred. Clearly, the seriousness of the offending was at the forefront of the sentencing Court's mind. The sentence was not suspended nor was a period of home detention ordered. The offending was regarded as simply too serious for either of these options to be pursued.

1. The sentence imposed by the District Court of South Australia in relation to the knife attack led to the mandatory cancellation of Mr Rai's visa. As I have said, the delegate declined to reinstate the visa by revoking the mandatory cancellation.

1. As I have said, my task is to consider afresh the exercise of the discretion. I note that the delegate was obliged to apply Direction 79 in exercising his or her discretion. That direction was repealed after the delegate's decision. Mr Gerrard submitted that I am obliged to apply the new direction as a part of my review. This is Direction 90, effective from 15 April 2021[4]. I am prepared to assume for the purposes of my review that that submission is legally correct. My reading of Direction 90 is that it is not more generous to Mr Rai than Direction 79, which preceded it. There may be an argument- but I put it no higher than that in the absence of detailed submissions- that a person like Mr Rai who has had his application considered under Direction 79 by a delegate has an accrued right to have his review in this Tribunal conducted under Direction 79 rather than under the new Direction 90. I need not consider that aspect of the matter further. I am prepared to apply Direction 90 in the circumstances of this case.

1. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

1. I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

1. First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen's conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

1. I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai's visa.

1. Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight "generally" to primary considerations over other considerations.

1. I turn now to consider the primary considerations. These are listed in four paragraphs in section 8. The first primary consideration is the protection of the Australian community from criminal or other serious conduct. I am directed to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious misconduct by noncitizens: paragraph 8.1(1). I do so. There is a reference in paragraph 8.1(1) to having particular regard to the principle earlier set out in paragraph 5.2(1). I bear that requirement in mind.

1. I am also required to give consideration to the nature and seriousness of the noncitizen's conduct to date and to the risk to the Australian community should the noncitizen commit further offences: paragraph 8.2. So far as the nature and seriousness of Mr Rai's criminal offending to date are concerned, and having regard to subparagraphs (a) to (g) mentioned in paragraph 8.1.1(1), I would note expressly as follows. Mr Rai's crimes have involved violent acts including a serious act of family violence against the stepfather. These are required to be considered very seriously, and I proceed on that basis. It is also clear that there have been repeated instances of violence. These have involved, for example, a bus driver, and community members (to the extent that the altercation in Hindley Street in which Mr Rai was involved was his fault and I am prepared to proceed on the basis that it was). More serious offending has involved Mr Rai's family (namely, his stepfather, who was threatened in the family home and in circumstances where there has also been property damage inflicted in the home). The home is occupied not only by Mr Rai's stepfather but by other family members including Mr Rai's grandmother, mother, and juvenile half siblings. Of course, the most serious offending has involved the use of a kitchen knife with which to stab an acquaintance three times. A common feature in Mr Rai's criminal offending has been the misuse of alcohol, which has disinhibited Mr Rai to a point where he has become seriously and dangerously violent.
2. I am to have regard to the sentences imposed. I do so. In respect of the stabbing, I note that the sentences was a long one to impose on a young person, and it reflected the gravity of the offending. So far as the family violence is concerned, I regard the offending as very serious.

1. There has been a frequency now in the range of offences, and I accept that there is a trend of increasing seriousness. In particular, the use of a knife with which to stab, and not merely threaten, the person occupying Mr Rai's bedroom was extremely serious, and represents a serious escalation. Serious injuries were inflicted on that occasion. Mr Rai was drunk at the time, and it is fortunate that the victim did not lose his life on that occasion. It cannot be said that Mr Rai did not intend to inflict grievous bodily harm: he did intend to inflict such harm. All in all, I proceed on the basis that the drunken attack was a most serious one, which could have led to the death of the victim. The criminal proceedings did not establish, however, that Mr Rai intended to kill his victim. Mr Rai was not found guilty of attempted murder. I proceed on that basis as well.

1. I am directed to have regard to the cumulative effect of repeated offending and I do so.

1. I turn now to consider the risks to the Australian community. I must have regard to the principle that the Government's view is that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases: paragraph 8.1.2(1). I follow that guidance. Some conduct and harm that would be caused if it were to be repeated can be so serious that any risk of repetition may be unacceptable.
2. I take this principle into account. The seriousness of potential harm that Mr Rai might inflict is self-evidently grave. I do not believe, however, that the conduct and harm that would be caused if it were to be repeated is so serious that any risk of its reoccurrence is unacceptable irrespective of any countervailing factors in Mr Rai's favour.

1. Paragraph 8.1.2 (2) requires me, when assessing the risk posed by Mr Rai to the Australian community, to have regard to a number of matters "cumulatively". I accept that the nature of the harm that Mr Rai would inflict upon individuals in the Australian community is very serious and extends to grievous bodily harm. Paragraph (b) requires me to consider the likelihood of Mr Rai engaging in further criminal or other serious conduct taking into account information and evidence on the risk of his reoffending and evidence of rehabilitation achieved by the time of the decision.

1. In this respect I should have regard, as the sentencing Court had regard, to the psychologist report prepared by Ms Heinrich.[5] That report refers to Mr Rai's alcohol and cannabis abuse. At page 6 of her report, Ms Heinrich discusses Mr Rai's abuse of these substances. It is clear that they have been consumed both singly and in combination in large amounts. Ms Heinrich accepts that at the time of the most recent and serious offending, Mr Rai met the criteria for an alcohol and cannabis-use disorder. She notes, and I agree, that Mr Rai's incarceration will have led to a remission of this disorder (in that the cycle of physical addiction has been broken). She notes, however, a significant risk of relapse on release. She says that it appears that Mr Rai may have used substances to manage painful emotional states associated with an adjustment disorder relating to the death of his grandfather (who died unexpectedly as a result of being struck by a motor vehicle). I note that Ms Heinrich makes the point that Mr Rai's intoxication would have led him to have had difficulty controlling his behaviour and to regulate his responses to difficult situations in which he found himself. It is clear that Ms Heinrich believes that Mr Rai will require support on release from jail in order to avert a relapse into alcohol or marijuana misuse.

1. This report is dated 28 July 2020, and so is approximately ten months old. A further ten months have now elapsed. I take into account the fact that Mr Rai has not undertaken alcohol rehabilitation courses in jail (although I accept that that was not for a want of cooperation on his part, but reflected rather their unavailability to him over the course of his prison sentence). I accept that Mr Rai would be willing to engage in those courses and to receive other counselling and support on his release from prison (which on the evidence will occur now that he has been granted parole). As at the time of my decision, however, these courses have not been undertaken. I understand from Mr Rai that he must arrange with his family to concur formally in his residing at the family premises (which was a scene of family violence). The evidence before the Tribunal suggests that the family will receive Mr Rai back to the family home. I note this was also apparently the evidence before the sentencing Court.[6]

1. In estimating risk, I pay due regard to Ms Heinrich's report. I agree that there is a risk of relapse. I take into account, however, the fact that Mr Rai has continued serving his sentence in jail since that report was written. This extra period has served in my opinion as an additional rehabilitative force in Mr Rai's case. Jail has an impressive effect upon young offenders when they are incarcerated for the first time as was the case with Mr Rai. He has now been in jail for nearly two years. I regard the deterrent effect of this jail term as strong in Mr Rai's case and I note his evidence to me, which I accept, that he has had time to reflect on his past violence and how he has wasted some part of his life.

1. Mr Rai will understand that any further violence will see only a longer jail sentence being imposed (because he will come to the court with a criminal history involving violence), and he will also know that he will face cancellation of his visa and the strong prospect of deportation. These two factors- particularly in my mind the prospect of deportation- will operate as significant deterrents in Mr Rai's case. Even on the most favourable view of his circumstances, Mr Rai would face the prospect of deportation to a country where he has no family connections. He would lose personal contact, effectively, with his family. I regard that particular consequence as an impressive factor for a person who is still relatively young. Indeed, it was clear to me in Mr Rai's final submissions (when he made a plea to me to allow him to remain) that the consequences of deportation have made a clear impression upon him. The reality of deportation has been made very clear to Mr Rai: effectively, only this hearing stood in the way of his deportation (leaving to one side the prospect of the grant of a ministerial visa and Mr Rai could not have any realistic expectation that this discretion would be exercised in his favour).

1. In my opinion, the recidivist risk Mr Rai poses is linked very much to alcohol consumption. Mr Rai has not drunk whilst in jail according to his evidence, which I accept as truthful. If Mr Rai were to consume any alcohol in the community, I believe there would be a very serious risk of that alcohol consumption developing into intoxication in due course. At that point, I believe Mr Rai would pose a very serious risk to the community. On the other hand, I believe that Mr Rai poses a low risk to the community if he stays away from alcohol. One important question to my mind involves assessing, therefore, whether Mr Rai's resolution not to drink, which he put to me at the hearing, can be relied upon. Given the strong deterrent factors to which I have referred, and given also the rehabilitative effect of the time he has spent in prison, I believe the risk of Mr Rai choosing to consume alcohol is low. I note in this regard that alcohol is not consumed in his family's household. Evidence was given by a family member (Mr Rai's mother) that alcohol is not consumed in the house as they are, in her words, "a Christian family". Alcohol will not therefore be available to Mr Rai as a temptation within the family home. That is an important feature of this case in my opinion. It will be up to Mr Rai entirely to decide what contacts he wishes to have of a social nature. He will be able to avoid alcohol if he so chooses. He will not be encouraged to drink by his family.

1. In all the circumstances, therefore, I regard the likelihood of Mr Rai engaging in further criminal or other serious conduct as low, but I remind myself that I must have regard "cumulatively" to this factor and to the very serious nature of the harm individuals in Australia face if Mr Rai were to relapse into violent criminal conduct.

1. By paragraph 8.2, I must have regard to the family violence that Mr Rai has perpetrated. I do have regard to that violence, and I also have regard to the Government's serious concerns about Mr Rai continuing to enjoy the privilege of remaining in Australia given his history of family violence: sub paragraph (1). The family violence extended to property damage and to the very serious offending involving the holding of a Ghurkha blade against his stepfather's throat. I accept that the domestic circumstances in which Mr Rai lived must have involved a great many arguments with family members (given his drinking) and that there must have been much verbal abuse in the household. I do not think one should exclude these arguments and abuse from the array of behaviours that Mr Rai's family have endured as a result of his antisocial drinking. I accept, however, that Mr Rai now accepts responsibility for his behaviour in this regard: sub paragraph (3)(c)(i). There has been frequency in Mr Rai's misconduct, and I accept that there was a trend of increasing seriousness in that conduct which led to the threatened use of a knife: sub paragraph (3)(a). I bear in mind the cumulative effect of the repeated violent arguments and antisocial behaviour in this domestic setting. I also accept that while Mr Rai accepts responsibility for his conduct, he has not formally engaged in counselling and other targeted rehabilitative measures which would lead him to a better understanding of the impact of his behaviour upon his family and which would lead him to address those factors in his life which have contributed to his misconduct: sub paragraph (3)(c)(ii).

1. I must have regard to the best interests of minor children in Australia: paragraph 8.3. I have decided to give no weight for or against Mr Rai to the interests of those of Mr Rai's half-siblings who are still minors. I understand that one is aged 16, one 14, and one 8 whilst the fourth is no longer a minor. I do accept Mr Rai's mother's evidence that they ask after their brother and wish to receive him back into the household; but I also bear in mind the obvious point that Mr Rai's behaviour in the past has been extremely disruptive in the household and that the half-siblings must, to some extent at least, entertain legitimate concerns about the resumption of disruptive behaviour. I bear in mind that since the family moved to Adelaide, which is many years ago, Mr Rai has abused alcohol and he must been a very unpleasant and disagreeable member of the family on frequent occasions.

1. I am to have regard to the expectations of the Australian community: paragraph 8.4. As is made clear in the paragraph, these are encapsulated within the Direction itself. They apply regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Clearly enough, the expectations of the Australian community would be against Mr Rai's continued presence in Australia. He has clearly had a serious problem with alcohol abuse leading him to strong antisocial and violent behaviour perpetrated within his own family and against members of the community in the ways I have already described.

1. All in all, therefore, the primary considerations weigh heavily against Mr Rai.

1. I must now consider other factors which are listed in a non-exhaustive way in section 9.

1. On the evidence before me, there are no non-refoulement obligations to consider.

1. So far as the extent of impediments on removal is concerned, there is some difficulty in assessing this criterion. On the evidence before me, Mr Rai is stateless in that he does not have a right as a citizen to return to either Bhutan or Nepal or any other country. This was the position put to me by Mr Gerrard, and I accept it for the purposes of my review: there is nothing before me that suggests to the contrary.

1. I have decided that I am able to complete my review adequately by assuming in the respondent's favour that the respondent will be able to negotiate the removal of Mr Rai to an appropriate third country. I emphasise that I have assumed this fact. For the purposes of my review, I am prepared to assume that this third country would be one like New Zealand, which has a similar welfare background and standard of living. On this assumption, which is as favourable as I can make it for the respondent, Mr Rai would still face some serious impediments to re-establishing himself. He is still relatively young. He has no family or other connections overseas. He has no settled work history. On the other hand, he is young and able to undertake physical work, and I shall assume that after a period of dislocation he would find gainful employment. I do note that he would be at greater risk overseas of relapsing into the consumption of alcohol and thereby recidivist criminal behaviour because of the absence of family support. In my opinion, all these impediments are real, and it is appropriate for me to take into them into account as a best-case scenario for Mr Rai.

1. So far as the impact on victims is concerned, I have no information concerning the victims of Mr Rai's assaults in the past, namely the bus-driver and the acquaintance who was stabbed. That is a neutral factor so far as these people are concerned. I note that the evidence before me suggests Mr Rai could return to the family home where his stepfather lives.

1. So far as his links to the Australian community are concerned, I accept that a very great part of Mr Rai's life has been lived in Australia. His earliest time in the refugee camp from birth until coming to Australia ended some years ago now, and his active growth and formation as a child, teenager, and young adult have all occurred in Australia. I accept that his ties are very much in Australia as a young adult and that his only family is in Australia. He has close ties with his grandmother, who raised him and who lives in Australia. He has ties with his mother, although her evidence before me indicated a certain distractedness in her thought processes that led me to believe the bond with Mr Rai was more remote. I do not accept that the relationship between Mr Rai and his stepfather constitutes a strong bond at the present time. On the evidence before me, there has been no contact between them for some years, and although Mr Rai's stepfather indicated in his letter[7] that he, along with other members of the family, love Mr Rai, there is no doubt in my mind that their relationship is one that does need to be rebuilt; but I accept that there is at the present time apparent goodwill on both sides for that rebuilding to commence.

1. The weighing of the discretion in this case has caused me some considerable difficulty. As I have said, I am prepared to assume, perhaps unrealistically, that the respondent would be able to secure Mr Rai's placement in a comparable third country within a reasonable period of time so that there is no prolonged confinement in a detention facility to be taken into account. Even on this very favourable view of matters, I believe the preferable or correct exercise of the discretion in this case is to set aside the decision under review.
2. I have formed the view that the risk of reoffending is clearly linked to alcohol consumption, and I believe that in the circumstances of this case the chances that Mr Rai would resort to alcohol are low. I do not say that they are nil, but they are low. I do bear in mind the very serious harm that Mr Rai is capable of inflicting when intoxicated. It does not seem to me to matter whether or not Mr Rai was provoked by the person he stabbed. Clearly enough, many members of the community find themselves in situations where they are provoked, even by physical aggression. Leaving cases of self-defence aside, it is unacceptable for members of the Australian community to use violence against other members of the Australian community. I also note that family violence is strongly antisocial and I note the particular attention this form of violence receives in Direction 90 (as opposed to its predecessor, Direction 79). I must also generally speaking give more weight to primary considerations than other considerations.
3. That said, the Direction requires me to consider the individual circumstances of each case. This is a case where the noncitizen committed his crimes whilst young and where there remains a very real and genuine prospect for reform given the very strong rehabilitative and deterrent effect jail will have had upon Mr Rai and the strong deterrent effect the prospect of deportation will also have worked upon him. This low risk of recidivism is an important feature, although, of course, I do not exclude the other matters that I am required to take into account under the Direction and to which I have referred in the course of these reasons. Mr Rai's own family will be affected by his deportation, and in particular I believe his grandmother will be affected by his deportation as she said in her evidence. She reared him together with her deceased husband. I believe also that Mr Rai's mother will feel some loss as well although she is presently unaware of the fact that he faces deportation. Mr Rai himself has very strong ties to Australia and no ties, importantly, to any other country.[8] Mr Rai also requires counselling and support for his rehabilitation, and these are more likely to be available to him, and to be more effective in his case, within a stable family context in Australia than in another country (even if I assume that other country to be an equivalent country like New Zealand). As I have said, I have not found this case an easy one, but in my opinion the correct or preferable decision on balance is to set aside the decision under review.

1. My decision has been reached on the assumption that Mr Rai would be promptly deported to an equivalent country like New Zealand. Clearly enough, my decision in favour of Mr Rai would be further strengthened by any assumption that Mr Rai would not be promptly deported to a third country, but would have to spend a considerable time in immigration detention. As I say, I have reached my decision without having to weigh up the impact of prolonged detention. I would only add briefly in this regard that the prospect of prolonged detention is one that would concern me as it involves a direct infringement on personal liberty. As a stateless person, Mr Rai would find himself in a very difficult situation where he would be detained unless and until a third country would accept him. I have no evidence before me to suggest that that impasse would be broken by the exercise by the respondent of his personal and non-compellable discretion to grant Mr Rai a visa with which he could continue to live in Australia.

1. My formal decision is to set aside the decision under review and to substitute a decision that Mr Rai's visa cancellation be revoked.

1. I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

[2] The ACIC Criminal History Check appears at Ex R1, pp 16-17.

[4] "Direction no 90- Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA".

[8] He does not know Bhutan as his family fled the country before he was born. His knowledge and understanding of Nepal are limited to the experiences of a person born and raised in a refugee camp there. He cannot be said to have any strong connection with Nepal and he is not ethnically Nepalese.