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

The Administrative Appeals Tribunal considered an application for a Visitor visa (Class FA) made by Mr Martin Hick, which had been refused by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on character grounds under section 501(1) of the *Migration Act 1958* (Cth). Mr Hick possessed a substantial criminal record, having been convicted in the United Kingdom for theft by an employee, involving the misappropriation of nearly £159,000 from client accounts over approximately seven years. The Tribunal was required to determine whether the discretion to refuse the visa under section 501(1) should be exercised, having regard to Ministerial Direction No. 99.

The central legal issue was the application of Ministerial Direction No. 99, specifically Primary Consideration 1 concerning the protection of the Australian community. The Tribunal had to assess the nature and seriousness of Mr Hick's past conduct and the risk he posed to the Australian community should he commit further offences. This involved evaluating factors such as the protracted, premeditated, and deceptive nature of his fraud, which constituted a serious breach of trust, and considering whether his offending behaviour indicated a propensity for future criminal activity.

Senior Member Hon J Rau SC reasoned that while Mr Hick's offending was serious, involving a significant breach of trust over an extended period, the proper application of Ministerial Direction No. 99 favoured not exercising the discretion to refuse the visa. The Tribunal found that there was "another reason" to depart from the refusal. Consequently, the decision under review was set aside and substituted with a decision that the visa not be refused under section 501(1) of the Act.