Fabb and Minister for Immgiration and Border Protection (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse Mr Michael Fabb, an 80-year-old United Kingdom citizen, a Visitor (Class FA) visa. The refusal was based on Mr Fabb failing the character test under section 501(6)(e) of the *Migration Act 1958* (Cth) due to a conviction in the UK for abuse of trust and sexual activity with a child, his nine-year-old step-granddaughter. The delegate had exercised the discretion under section 501(1) to refuse the visa, concluding that Mr Fabb posed an unacceptable risk to the Australian community.

The primary legal issue before the court was whether the delegate had properly exercised the discretion under section 501(1) of the Act, considering the relevant factors outlined in Direction No. 65. This involved balancing the protection of the Australian community from criminal conduct against countervailing considerations. The court was required to determine if the delegate's conclusion that the risk posed by Mr Fabb outweighed other considerations, such as his lack of contrition and the misleading information provided in his visa application, was reasonable.

The court reasoned that while Mr Fabb's conviction for a sexual offence involving a child was serious and prima facie warranted careful consideration, several countervailing factors were significant. These included Mr Fabb's unblemished record apart from this single conviction, his lack of repeat offending, the fact that the conviction resulted in a low-level sentence without imprisonment, and his subsequent visit to Australia in 2008 where he disclosed his conviction and posed no apparent risk. Crucially, the court noted the absence of evidence of contrition, but also the Applicant's continued protestations of innocence. The court concluded that the discretion to refuse the visa should not have been exercised.

Consequently, the decision under review was set aside, and the court ordered that the discretion under section 501(1) of the *Migration Act 1958* to refuse Mr Fabb a Visitor (Class FA) visa should not be exercised.