CBYQ and Minister for Immigration and Border Protection (Migration)

CBYQ and Minister for Immigration and Border Protection (Migration) [2018] AATA 91 (31 January 2018)
Division:GENERAL DIVISION
File Number(s): 2017/6650
Re:CBYQ
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President J W Constance
Chris Puplick AM, Senior Member
Date:31 January 2018
Place:Sydney

The decision of the delegate of the Minister made on 15 October 2017 to refuse the Applicant’s application for a Protection (Class XA) visa is set aside.
The matter is remitted to the Minister for reconsideration with a direction that as at the date of the decision of the Tribunal the Applicant passes the character test set out in section 501 of the Migration Act 1958 (Cth).
.......................................[sgd].................................
J W Constance
Deputy President
CATCHWORDS
MIGRATION – visa – refusal – character test – consideration of past and present criminal conduct – consideration of past and present general conduct – whether there is a risk the Applicant would engage in criminal conduct if allowed to remain in Australia – offences – unlawful assault – breaches of Family Violence Order – unlawfully residing in Australia and two other countries – must consider all relevant circumstances of the particular case – no more than minimal or remote risk of engaging in criminal conduct – Applicant passes the character test – consideration of whether the discretion to refuse to grant the visa should be exercised – protection of Australian community – no more than a minimal or remote risk of re-offending – expectations of Australian community – genuine fears for life and physical safety if returned to country of birth – international non-refoulement obligations owed – decision set aside and remitted for reconsideration
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501(1), 501(6)
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President J W Constance
Chris Puplick AM, Senior Member
31 January 2018
A. INTRODUCTION

The Applicant has resided in Australia since early 2013.
In 2015 the Applicant applied to the Minister for a Protection (Class XA) visa. On 15 October 2017 a delegate of the Minister refused the application on the basis that the Applicant did not pass the character test set out in the Migration Act 1958 (Cth).
The Applicant has applied to the Tribunal to review the decision to refuse his application. For the reasons which follow, the delegate’s decision will be set aside. The matter will be remitted to the Minister for further consideration on the basis that, at the date of the Tribunal’s decision in this application, the Applicant passes the character test.
B. BACKGROUND
Unless stated otherwise, the findings of fact in these reasons are based on the evidence of the Applicant. We are satisfied that the Applicant was an honest witness who gave his evidence to the best of his recollection. It is to be noted that at the hearing of this application, much of the evidence of the Applicant was unchallenged by the Minister. We shall refer to this evidence in detail later in these reasons.
The applicant is a 46 year-old bisexual man. He was born outside Australia. He lived with his family in a small village in his country of birth until he was 16 years old.
At the age of 16, the Applicant was found in the company of a homosexual man and taken to the local Police Station. He was held at the Station for two days during which time he was repeatedly beaten. He was charged with an offence related to homosexuality but was released by the Court on the basis that there was a lack of evidence.
Following his release, the Applicant was returned to the village in which he lived. His older brother, who was head of the family, was informed by Police that the Applicant was a homosexual. Upon his return, the Applicant was severely beaten by his brother and a number of his cousins. The Applicant was told by his brother that he (his brother) would only rest on the Applicant’s dead body. The beating of the Applicant continued for a number of days until one of the Applicant’s cousins intervened.
As result of the beatings he received, the Applicant moved to a city approximately 120 km from the village in which he had lived. He did not return to his village but spent the next year working in various jobs and hiding from his family. He was told by his cousin that, by reason of the shame he had brought on the family, he would never be accepted in his village and that his brother would “never rest only on [his] dead body”.[1]
[1] Exhibit R1 (vol.1) p.65.
When he turned 18, the Applicant applied for a passport and, with the assistance of the man who he had met as a 16 year-old, he left his home country. He has never returned and has not seen his mother since his departure. Since leaving he has resided in Italy, the Netherlands, Portugal and, since early 2013, Australia.
In 2012 the Applicant was living in Portugal. He met an Australian woman and after some time they agreed to marry. The Applicant entered Australia in 2013 on a Prospective Marriage (Temporary) (Class TO) visa.[2] He married shortly thereafter. In July 2013 he was granted a Partner (Temporary) (Class UK) visa.
[2] Exhibit R1 (vol.1) p.98.
The Applicant and his wife separated in December 2013. On 23 December 2013 the Applicant was made the subject of a Family Violence Order by a State Magistrates’ Court. He was ordered not to attend the address where his wife lived and was prohibited from contacting her. We shall refer to the circumstances of this separation later in these reasons.
On several occasions between December 2013 and July 2014 the Applicant breached the terms of the Family Violence Order.
On 27 May 2014 the Applicant’s Bridging A visa ceased and he became an unlawful non-citizen. He continued to live in the community until February 2015 when he was detained by Police and transferred to an Immigration Detention Centre
In September 2016 the Applicant was arrested whilst in immigration detention in relation to 22 charges arising from his breach of the Order.[3] In October 2016, he was convicted of seven of these offences and an offence of assaulting his wife.[4] The assault occurred in December 2013, at the time of their separation.
[3] Exhibit R1 (vol. 2) pp.21-30; a reference to the execution of a warrant on 3 September 2016 appears at p.21.
[4] Exhibit R1 (vol.2) pp.31-32
The Applicant was released from detention in September 2016 but again taken into detention in November 2017 as a result of the refusal of his application for a protection visa. He has remained in detention since. In all, the Applicant has spent approximately one year and 10 months in immigration detention.
C. MIGRATION ACT 1958 (CTH)
Refusal to grant a visa by reason of a person’s failure to satisfy the decision-maker that he/she passes the character test
Subsection 501(1) of the Act provides:
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Character test
Subsection 501(6) sets out the circumstances in which a person does not pass the “character test” referred to in subsection 501(1). It provides in part:
For the purposes of this section, a person does not pass the character test if:
……
(c)having regard to either or both of the following:
(i)     the person’s past and present criminal conduct;
(ii)    the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)     engage in criminal conduct in Australia;
……
Otherwise, the person passes the character test.
D.   DIRECTION NO.65
In exercise of the power given by s 499, the Minister issued Direction No. 65 on 22 December 2014. It provides “General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to… refuse a non-citizen’s visa under section 501…”.[5]
[5] Clause 5.
Paragraph 6.2 provides General Guidance in exercising the discretion to refuse the grant of a visa. It provides, in part:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused ….. under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse ….. a non-citizen’s visa under section 501….. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in ….. Part B…..of this Direction.
The Principles are set out in Paragraph 6.3:
6.3 Principles
(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 vulnerable members of the community such as minors, 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.
The manner in which the discretion is to be exercised is set out in Paragraph 7. Informed by the principles in Paragraph 6.3 the decision-maker must take into account the considerations set out in Part B of the Direction. We will refer to these considerations in detail later in these reasons.
Paragraph 8 provides that a visa applicant “should have no expectation that a visa application will be approved.” Sub-paragraphs 8(2) – 8(5) provide:
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
E. ISSUES FOR CONSIDERATION
The following issues arise for determination.
(a)Does the Applicant satisfy the Tribunal that he passes the character test set out in subsection 501(6) of the Migration Act?
(b)If he does not, should the Tribunal exercise the discretion to refuse to grant the visa sought?
F. CONSIDERATION
ISSUE 1: DOES THE APPLICANT SATISFY THE TRIBUNAL THAT HE PASSES THE CHARACTER TEST SET OUT IN SUBSECTION 501(6) OF THE MIGRATION ACT?
The Minister’s argument
It was argued on behalf of the Minister that the Applicant does not pass the character test on three separate grounds:
(a)having regard to his past and present criminal conduct, he is not of good character (see subsection 501(6)(c)(i));
(b)having regard to his past and present general conduct he is not of good character (see subsection 501(6)(c)(ii));
(c)in the event that he was allowed to remain in Australia there is a risk that he would engage in criminal conduct in Australia (see subsection 501(6)(d)(i)).
We may have regard to the conduct referred to in the first two grounds either separately or together.
Having regard to the Applicant’s past and present criminal conduct, is the Applicant not of good character?
Annex A to Direction No.65 contains provisions relating to the application of the character test. The relevant provisions are reproduced in the schedule to these reasons.

It was put on behalf of the Minister that “the Applicant’s domestic violence offending was extremely serious. It involved a physical assault and frequent and persistent offending over a period of approximately seven months…... Moreover, the Applicant committed the offences in circumstances where he knew there were family violence orders in place…….and in breach of these orders, demonstrating a blatant disregard and contempt to the law.”[6]The Minister also relied upon the Applicant’s choosing to reside as an unlawful non-citizen in the Netherlands, Portugal and Australia.
[6] Respondent’s Statement of Facts, Issues and Contentions para.12

While there can be no doubt that any form of domestic violence is serious, we are required to take into account “all the relevant circumstances of the particular case”.[7] Having done this we are satisfied that the Applicant’s conduct should not be regarded as “extremely” serious as the Minister argues, but should be considered as being among the least severe of any form of domestic violence.
[7] Direction No.65 p.26.
We accept the Applicant’s evidence that when he appeared before the Court in October 2016, the learned Magistrate observed that some of the charges appeared to be repetitious and requested the Prosecution nominate those charges which the Prosecution wished to proceed. The assault charge and seven of the contravention charges were nominated. The court records show that 13 charges were struck out and two were withdrawn.[8]
[8] Exhibit R1 (vol.2) p.4.
On the advice of his Solicitor, the Applicant pleaded guilty to the eight nominated charges. However, details of the particular charges selected to proceed were not discussed with him before his plea was entered.
The offences of which the Applicant was convicted are as follows:
(a)unlawful assault;
(b)communicating with the protected person between 27 December 2013 and 10 January 2014;
(c)on 6 April 2014 attending the protected person’s address and communicating with the protected person;
(d)on 6 April 2014 attending the protected person’s address knowing that his conduct will probably cause apprehension or fear in the protected person;
(e)on 4 May 2014 attending the protected person’s address and communicating with the protected person;
(f)on 4 May 2014 stalking the protected person by entering or loitering outside or near the person’s place of residence;
(g)between 23 June 2014 and 4 July 2014 sending numerous mobile phone text messages to the protected person;
(h)between 23 June 2014 at 4 July 2014 sending numerous mobile phone messages to the protected person knowing that his conduct constituted a contravention of the Family Violence Order;
(i)between 23 June 2014 and 4 July 2014 sending numerous text messages to the protected person knowing that his conduct would probably cause apprehension or fear in the protected person.[9]
[9] Exhibit R1 (vol.2) pp.3, 31-32 & 21-30.
The Applicant gave evidence that difficulties arose in his marriage after he and his wife moved interstate in 2013 and his wife resumed making contact with a former male friend.
On the evening of 20 December 2013 the Applicant and his wife entertained friends. After the friends left the home a disagreement arose between the Applicant and his wife causing the Applicant to leave the home alone. In the early hours of the following morning the Applicant sent a text message to his wife telling her that he was on his way home, to which his wife replied “don’t bother you are dead for me”.[10]
[10] Transcript 22/01/2018.
When the Applicant returned home his wife was extremely angry and demanded that he leave the house. He endeavoured to calm her down but was unsuccessful. The wife then attempted to throw the Applicant’s clothing out of a window. In his efforts to prevent this happening the Applicant made physical contact with his wife. The Applicant says that as he leaned forward his hand came in contact with his wife’s arm. The Police records state that the Applicant was arrested after he had grabbed his wife by the arms during a struggle.[11]
[11] Exhibit R1 (vol.2) p.8.
We accept the evidence of the Applicant set out in the preceding three paragraphs.
There is nothing before us to indicate which version of the events the Court took into account in convicting the Applicant of the assault, and there is no evidence to suggest that the Applicant’s wife suffered any form of injury, physical or psychological, as a result of the contact between them. However, we must accept that, as the Applicant has been convicted of the criminal offence of assault, the Court did not consider that the contact between him and his wife was accidental.
Taking into account all of the circumstances which led up to the assault, we do not regard the Applicant’s conduct as “extremely” serious. As it involved domestic violence it must be regarded as serious, but at the lower end of the scale of such conduct.
In reaching this conclusion we have taken into account that the penalty imposed on the Applicant was a fine of $500.[12] We have also taken into account that the Police did not consider it appropriate to charge the Applicant with assault immediately after the assault occurred. The charge of assault was not laid until 28 February 2014, two months later. We are satisfied that had the Applicant not breached the Family Violence Order he would not have been charged with the assault. We infer from this that the Police did not regard the Applicant’s conduct as particularly serious at the time of the incident.
[12] Exhibit R1 (vol.2) p.3.

The Applicant’s conduct must be viewed more seriously by reason of his contravention of the Family Violence Order on more than one occasion. Consideration of the various offences of which he was convicted shows that his breaches involved attending his wife’s premises on two occasions and multiple contacts with her by electronic means.
The Applicant gave evidence that he did not contact his wife on as many occasions as alleged in the charges and that he attended her premises on only one occasion after the Order was made and not on two occasions as alleged. Again, we must accept the convictions as they stand and proceed on the basis that his conduct was as described in the convictions recorded against him.
By way of penalty in respect of the breaches of the Order the Applicant was required to perform 75 hours of unpaid community work over a period of nine months. No other penalty was imposed. This suggests that the Court regarded the offences as being at the lower end of the scale.
When giving evidence the Applicant said that he was sorry for his offending and accepted that he was “completely wrong”[13] in acting the way he did. He did not clearly understand the seriousness of not complying strictly with the Order against him. Further the first contact between he and his wife after the Order was made was instigated by his wife, to which he responded. In April 2014 he went to the home where his wife continued to reside in the hope that he could save his marriage. We accept this evidence.
[13] Transcript 22/01/2018.
We are not satisfied that the Applicant has shown a pattern of repeated offending nor a trend of increasing seriousness. Although the criminal conduct took place over a period of more than six months, it all related to a series of events commencing with the Applicant’s wife demanding that he leave their home. All the offences were related, rather than separate incidents of criminal conduct.
The last criminal conduct by the Applicant was in mid-2014, over three years ago. There is nothing to suggest that there has been any recidivism or that the Applicant has associated with criminals. There is no pattern of similar criminal conduct or continued contempt for the law. The Applicant has spent 22 months in immigration detention and there is no suggestion that the Applicant has acted inappropriately during that time.
It was argued that the Applicant has shown a blatant disregard for the law over a number of years by residing as an unlawful non-citizen in three countries. However, again the circumstances of this conduct must be taken into account.
Ever since he left his home country the Applicant has feared that he would be severely beaten or killed should he return. He told us, and we accept his evidence, that when he resided in the Netherlands and in Portugal without permission he informed the authorities of this and endeavoured to obtain the necessary visas.
When he was living in Portugal the Applicant was twice arrested for fare evasion. We do not have details of these matters. We do not regard them as sufficiently serious as to affect our assessment of the Applicant’s character.
The Applicant’s unlawful residence in Australia in disregard of our migration laws is a factor which tells against his good character. However, we take into account that he held two different Australian visas prior to his becoming an unlawful non-citizen and that he was genuinely fearful of returning to his home country which he had left 25 years previously.
We have considered also that the Applicant respected Australia’s migration laws by not seeking employment when he was not entitled to do so. In that time he did some volunteer work. He also completed the community service ordered by the Court within three weeks rather than the nine months allowed. To do this he remained in the State where the order was made, at times sleeping on the streets as he did not have permanent accommodation in that State. It was a requirement of the order that he not leave the State until the community service was completed.[14]
Having regard to the Applicant’s past and present general conduct, is the Applicant not of good character?
[14] Transcript 22/01/2017
Direction No.65 states that this question “allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence.”[15]
[15] Annex A para.5.2.
We are unaware of any conduct of the Applicant which should be taken into account other than that already considered. The Minister argued that the Applicant’s residence as an unlawful non-citizen should be regarded as criminal conduct. This was appropriate.
There is nothing in the Applicant’s past or present general conduct which indicates that he is not of good character.
In the event that the Applicant was allowed to remain in Australia, is there a risk that he would engage in criminal conduct in Australia?
The Direction provides there must be “more than a minimal or remote chance”[16] that the Applicant would engage in various conduct specified in section 501(6)(d) of the Act. In this case the Minister relied on only the risk of the Applicant’s engaging in criminal conduct in Australia. On the evidence in this application this was appropriate as there is no evidence to suggest that there was a risk of the Applicant’s engaging in any of the other specified conduct.
[16] Direction No.65 p.28.
As we have said previously, the Applicant’s conduct in relation to the domestic violence offences all relate to the breakup of his marriage and, in particular, his breaches of the Family Violence Order came about as a result of his hope that he could save his marriage. Whilst these are not excuses for domestic violence, the circumstances do indicate that it is likely that his offending was a result of a singular series of events and unlikely to be repeated.
The report of Mr Ali, Psychologist[17]
[17] Exhibit A4.
The Applicant arranged for his assessment by Mr Ali in December 2017 and January 2018 for the purposes of these proceedings. Mr Ali provided a report dated 17 January 2018. He did not give evidence. He was not required to attend for cross-examination by the Minister’s Counsel and the contents of his report were not challenged on behalf of the Minister.
Mr Ali reported, in part:
The results [of the Personality Assessment Inventory] suggest that [the Applicant] has likely experienced a disturbing traumatic event in the past; an event that continues to distress him and produce recurrent episodes of anxiety. Whereas the item content of the PAl does not address specific causes of traumatic stress, possible traumatic events involve victimisation (e.g., rape, abuse), combat experiences, life-threatening accidents, and natural disasters and which is consistent with [the Applicant’s] reports of having experienced a significant and alleged assault at the hands of his brother and cousin prompting him to flee his home country……
Fortunately, [the Applicant] reports that he has a number of supportive relationships both within and mostly outside of his detention context that may serve as some buffer against the effects of this stress.
[The Applicant] has expressed an interest in and commitment to further treatment sessions and whose interest in and motivation for treatment is typical and comparable to that of individuals being seen in treatment settings, as opposed to adults who are not being seen in a therapeutic setting. [The Applicant’s] responses suggest an acknowledgement of important problems and the perception of a need for help in dealing with these problems.
[The Applicant] reports a positive attitude towards the possibility of personal change, the value of therapy, and the importance of personal responsibility all of which are strengths and positive indications for a relatively smooth treatment process and a reasonably good prognosis. [The Applicant’s] current level of distress appears to be uniquely related to his current detention and associated situational stressors, and the relatively intact and committed social support system is a favourable prognostic sign for his future adjustment in the event he was to be released from detention and return to the wider community.
……
Currently, [the Applicant] presents with significantly elevated symptoms of anxious, depressive and adjustment related difficulties following his separation from his sponsoring ex-wife some 4 years ago now and which triggered a long chain of events including [the Applicant] being charged and convicted of domestic violence, experiencing homelessness and having been detained for some 19 months. Similarly, [the Applicant’s] recent detention in the context of having had his protection visa cancelled has again caused yet another significant set-back in [the Applicant’s] adjustment and attempts to settle in a country he feels safe in and free from the threat of violence, persecution or worse still death which he believes is guaranteed if he were to be deported to his country of birth……
[The Applicant] has endured significant hardship in his fight to survive and adjust to a foreign country; the laws, rules and customs of which he has only recently come to understand.
……
[The Applicant] maintains that he was unaware that he could not respond to his ex-wife even if she contacted him in this context and describes this as an honest ‘mistake’ in attempting to salvage his then marriage.
……
Despite [the Applicant’s] prior domestic violence charges and based on the available evidence and information obtained via the current assessment, there is currently very little evidence available with regard to [the Applicant’s] past and current behaviour, attitude and personality to suggest that [the Applicant] is a risk to the community in the form of either antisocial, criminal or violent behaviour towards the community nor his ex-wife whom he has had no contact with since the breach of his AVO and whom he has expressed he has no plans or desire to contact ever again.
In light of his current uncertainty, [the Applicant] continues to present with a degree of ambivalence about making any concrete plans for his long-term future but has articulated a strong desire to put the last 4 or so years behind him and if released into the community and given his love of food, cooking, art and wine has goals to work in the hospitality industry in the hope of one day opening a small restaurant. He also hopes to one day return to study tourism during which he hopes to be able to offer his services and knowledge of some 8-9 mostly European languages to the community with the hope of providing a translating and interpreting service and maintaining a consistent and predictable day to day routine. In light of his age (46) [the Applicant] has also expressed a desire to settle down with a partner with whom he can share his love of life with.
Discussion
Based on the evidence of Mr Ali, the circumstances of the Applicant’s previous convictions and the evidence of the Applicant, we are satisfied that the risk of the Applicant’s engaging in further criminal conduct in this country is no more than minimal and no more than remote.
We are strengthened in this conclusion having had the opportunity hear and observe the Applicant give evidence. He impressed us as a person who has learnt from his mistakes and who has plans to be able to use his skills to make a successful life in Australia should he have the opportunity to do so. He gave evidence of his plans consistent with those described to Mr Ali and referred to above.
Conclusion in relation to the character test
Having considered all of the evidence, we are satisfied that the Applicant does pass the character test set out in section 501 the Migration Act. On this basis the discretion to refuse to grant a visa given by subsection 501(1) of the Act does not arise.
ISSUE 2: HAD IT ARISEN, SHOULD THE DISCRETION TO REFUSE TO GRANT THE VISA SOUGHT BE EXERCISED?
In case we are wrong in deciding that the Applicant passes the character test, we turn to consider whether, in those circumstances, the discretion to refuse his application for a visa should be exercised.
The relevant provisions of the Direction are in the attached schedule, being Section 1 paragraph 6, Section 2 paragraphs 7 and 8 and Part B.
Primary consideration 1: protection of the Australian community from criminal or other serious conduct
We note the provision that the Government “is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.”[18] We take account of the emphasis the Australian community places on preventing harm from any form of domestic violence.
[18] Direction No.65 para.11.1.
In the circumstances already described and for the reasons given, the Applicant’s criminal convictions for domestic violence should be regarded as being at the less serious end of the scale and we are satisfied that there was no injury of any type inflicted on the victim.
Further, for the reasons stated we are satisfied that there is no more than a minimal or remote risk of the Applicant re-offending. Given the nature of the assault we are satisfied that the risk associated with a repeat of the criminal conduct would not be significant.
The Minister also relies on the Applicant’s decision to remain in Australia as an unlawful non-citizen for a period of eight months. For the reasons already stated we do not consider that this conduct, either alone or in conjunction with the other criminal conduct, was sufficiently serious to warrant the exercise of the discretion to refuse the visa.
Primary consideration 2: best interests of minor children in Australia affected by the decision
Based on the evidence of the Applicant we are satisfied that there are no minor children in Australia affected by the decision.
Primary consideration 3: expectations of the Australian community
The Principles set out in sub-paragraph 6.3 provide guidance in determining the expectations of the Australian community. A decision-maker is to be informed by those principles when making a decision as to the cancellation of a visa.
The Australian community has a legitimate expectation that non-citizens who are granted the privilege of residing in this country will abide by, and respect, our laws. A person who has committed a serious crime should generally expect to forfeit the privilege of remaining in Australia.
We are not satisfied that the community would expect a person in the circumstances of the Applicant to lose the right to continue to live in Australia. We are of the view that the community would not expect a person to be returned to a country which he left 25 years ago when he holds genuine fears for his life and physical safety. While it is clear that the community would strongly disapprove of the Applicant’s conduct, it would be prepared to extend some leniency towards him in the circumstances of the particular offending, including the apparent lack of any physical harm to the victim.
Other considerations
International non-refoulement obligations
In his Statement of Facts, Issues and Contentions the Minister advised the Tribunal that he “accepts that the Applicant is owed international non-refoulement obligations, and that the removal of the Applicant to [his country of origin] would be in breach of those obligations”.[19] This consideration weighs in favour of not exercising the discretion to refuse to grant the Applicant the visa he seeks.
[19] Para. 58.
Impact on family members
This consideration is not relevant in this application.
Impact on victims
We have no evidence as to the impact of a decision to grant a Protection visa on members of the Australian community, the Applicant’s former wife or members of her family.
Impact on Australian business interests
The remaining consideration of the impact on Australian business interests is not relevant in this application.
Conclusion as to the exercise of the discretion to refuse the visa
Taking into account the various considerations referred to above we conclude that, should the issue arise, the circumstances of the Applicant and the nature and seriousness of his offending are such that the discretion to refuse his application should not be exercised.
G. CONCLUSION
The decision of the delegate of the Minister made on 15 October 2017 to refuse the Applicant’s application for a Protection (Class XA) visa will be set aside.
The matter will be remitted to the Minister for reconsideration with a direction that as at the date of the decision of the Tribunal the Applicant passes the character test set out in section 501 of the Migration Act 1958 (Cth).

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Chris Puplick AM, Senior Member

........................................[sgd]................................
Associate
Dated: 31 January 2018

Date(s) of hearing: 22 January 2018

Applicant: In person

Solicitors for the Respondent: T Aviram, Clayton Utz
SCHEDULE
Extracts from Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA:
Section 1       Preliminary
……
6.        Preamble
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.
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(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.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

6.3 Principles
(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 vulnerable members of the community such as minors, 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.

Section 2       Exercising the discretion
7.        How to exercise the discretion
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)    must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b)    must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.

8. Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.

……
Part B
11       Primary considerations- visa applicants
(1)In deciding whether to refuse a non-citizen's visa, the following are primary considerations:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian Community.
11.1Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. Decision makers should also give consideration to:
a)    The nature and seriousness of the non-citizen's conduct to date; and
b)    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

11.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen's criminal offending or other serious conduct to date, decision-makers must have regard to:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
d)The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
i)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

11.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any likelihood that it may be repeated may be unacceptable.
(2)In addition, decision-makers should have regard to the principle that 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.
(3)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending; and
ii.evidence of any rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.

(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

11.2 Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether refusal is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future (taking into account the length of time until the child turns 18), and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

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

12 Other considerations- visa applicants
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Impact on family members;
c)Impact on victims;
d)Impact on Australian business interests.

12.1International non-refoulement obligations
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen's visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the nonrefoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s50 1 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them- sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia's international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person's Protection visa application were refused, they would face the prospect of indefinite immigration detention.

12.2 Impact on family members
(1)Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely;

12.3 Impact on victims
(1)Impact of a decision to grant a visa on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where that information is available and can be disclosed to the non-citizen being considered for visa refusal;

12.4 Impact on Australian business interests
(1)Impact on Australian business interests if the non-citizen's visa application is refused, noting that an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project or delivery of an important service in Australia.

……
ANNEX A – Application of the character test
Section 1 Overview of the character test
Discretionary visa cancellation or refusal
(1)Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test.
(2)Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
(3)Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.
(4)In considering a person with unresolved criminal matters, decision-makers should note:
a)Where a person already fails the character test, any other outstanding criminal matters would not generally prevent consideration of their case under section 501;
b)A person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined;
c)Where a person is in Australia, and they are facing charges in another country, and the charges will not be resolved in absentia, the conduct that is the subject of those charges may be considered in the context of section 501(6)(c)(i) and/or (ii).

(5)If the person does not pass the character test, section 501(1) of the Act enables a visa to be refused and section 501(2) of the Act enables a visa to be cancelled.

……
Section 2 Application of the character test
……
5. Not of good character on account of past and present criminal or general conduct (section 501(6)(c)(i) and (ii))

(1)A person does not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.
(2)The concepts of criminal conduct and general conduct are not mutually exclusive. Conduct can be both general and criminal at the same time or it may be either general or criminal conduct: Wong v Minister for Minister Immigration and Multicultural Affairs [2002] FCAFC 440 at [33].
(3)In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account to obtain a complete picture of the person's character.
a) In Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411, Lee J said at [34] ‘the words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.’

(4)In order to fail this limb of the character test, a person need not necessarily have a recent criminal conviction, or have been involved in recent general conduct which would indicate that they are not of ‘good character’. However, the conduct in question must be sufficient to indicate a lack of enduring moral quality that outweighs any consideration of more recent good behaviour.
a.In Godley, Lee J went on to say ‘For a finding to be made under s501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term ‘present criminal conduct’ is to be understood), becomes past criminal conduct must be a matter of judgement. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character’.
‘Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

5.1 Past and present criminal conduct
(1)In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:
a)The nature and severity of the criminal conduct;
b)The frequency of the person's offending and whether there is any trend of increasing seriousness;
c)The cumulative effect of repeated offending;
d)Any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges' comments, parole reports and similar authoritative documents; and
e)The conduct of the person since their most recent offence, including:
i.The length of time since the person last engaged in criminal conduct;
ii.Any evidence of recidivism or continuing association with criminals;
iii.Any pattern of similar criminal conduct;
iv.Any pattern of continued or blatant disregard or contempt for the law; and
v.Any conduct which may indicate character reform.

5.2 Past and present general conduct
(1)The past and present general conduct provision allows a broader view of a person's character where convictions may not have been recorded or where the person's conduct may not have constituted a criminal offence.
a)In considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.

(2)The following factors may also be considered in determining whether a person is not of good character:
a)Whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:
i.Involvement in activities such as terrorist activity, activities in relation to trafficking or possession of trafficable quantities of proscribed substances, political extremism, extortion, fraud; or
ii.A history of serious breaches of immigration law, breach of visa conditions or visa overstay in Australia or another country; or
iii.Involvement in war crimes or crimes against humanity;

b)whether the person has been removed or deported from Australia or another country and the circumstances that led to the removal /deportation; or
c)whether the person has been:
i.dishonourably discharged; or
ii.discharged prematurely;

from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct that, in Australia would be regarded as serious.

(3)Where a person is in Australia and charges have been brought against that person in a jurisdiction other than an Australian jurisdiction, and those charges will not be resolved in absentia, the conduct that is the subject of those charges may be considered in the context of its impact on the person's overall character.

6 Risk in regards to future conduct (section 501(6)(d))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2)The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3)It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1)A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.

…….
ANNEX B – Interpretation
Act means the Migration Act 1958.
Character test is the character test prescribed in s501(6) of the Act and set out in Annex A of this Direction.
Decision- maker means a person (sometimes referred to as a delegate), or a body (such as the Administrative Appeals Tribunal) with the power to perform functions or exercise powers under s501 of the Act.

Immigration detention         is defined in section 5 of the Act and means:
a.    being in the company of, and restrained by:
i.an officer; or
ii.in relation to a particular detainee - another non-citizen directed by the Secretary to accompany and restrain the detainee; or

b. being held by, or on behalf of an officer;
i.in a detention centre established under this Act; or
ii.in a prison or remand centre of the Commonwealth, a State or Territory; or
iii.in a police station or watch house; or
iv.in relation to a non-citizen who is prevented, under section 249 of the Act, from leaving a vessel - on that vessel; or
v.in another place approved by the Minister in writing.

Minoris defined in section 5 of the Act as a person is who less than 18 years old.
Non-citizen is defined in section 5 of the Act as a person who is not an Australian citizen

Remove is defined in section 5 of the Act as remove from Australia.
Serious conduct Behaviour or conduct of concern where a conviction may not have been recorded, or where the conduct may not, strictly speaking, have constituted a criminal offence.
Such conduct may include, for example, involvement in activities indicating contempt or disregard for the law or human rights, or a history of serious breaches of immigration law. It also includes conduct which may be considered under s501(6)(c) and/or s501(6)(d).

Section 501 means section 501 of the Act
Substantial criminal record is defined in section 501(7) of the Act.
Substantive visa                  is defined in section 5 of the Act and means a visa other than:
a.    a bridging visa; or
b.    a criminal justice visa; or
c.     an enforcement visa.

VisaSubject to the Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
a. travel to and enter Australia;
b. remain in Australia

Visa applicant is defined in section 5 of the Act as an applicant for a visa and, in relation to a visa, means the applicant for the visa.
Visa holderis defined in section 5 of the Act as the holder of a visa and, in relation to a visa, means the holder of the visa.

[2018] AATA 91

31 January 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction

Date(s) of hearing:	22 January 2018
Applicant:	In person
Solicitors for the Respondent:	T Aviram, Clayton Utz