Fortune and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 310
•17 March 2025
Fortune and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 310 (17 March 2025)
Applicant:Finn FORTUNE
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/11006
Tribunal: General Member T Eteuati
Place:Brisbane
Date of decision: 17 March 2025
Date of reasons: 30 March 2025
Decision:The Tribunal sets aside the reviewable decision and remits the matter to the decision-maker for reconsideration with the order that the Applicant’s visa application not be refused under section 501(1) of the Migration Act 1958 on the basis of the conduct which lead to her convictions of 19 December 2019.
Statement made on 30 March 2025 at 10:31pm
Catchwords
MIGRATION – refusal of Applicant’s visa application – whether there is a risk the Applicant would engage in criminal conduct in Australia – consideration of Ministerial Direction No. 110 – Tribunal finding the Applicant does not fail to pass the character test – no discretion to refuse visa – decision set aside and remitted
Legislation
Administrative Review Tribunal 2024 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
Frazer (Migration) [2018] AATA 593
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Secondary Materials
Ministerial Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Statement of Reasons
This is an application by Finn Fortune (“the Applicant”) for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister” or “the Respondent’) on 20 December 2024 to refuse, under section 501(1) of the Migration Act 1958(Cth) (“the Act”), to refuse the Applicant’s application for a Working Holiday (Temporary) (Class TZ) visa.
The Applicant is a 25-year-old citizen of Ireland. She first arrived in Australia on 8 August 2019 as the holder of a working holiday visa.
On 19 December 2019, the Applicant was convicted of Common Assault and Destroy or damage property, for which she was sentenced to a 12 month Community Correction Order and was fined $660 for each offence.
On 7 August 2020, the Applicant applied for a second working holiday visa. In her visa application, the Applicant made character declarations regarding her criminal convictions.
On 6 May 2024, the Department of Home Affairs (the Department) wrote to the Applicant to notify her of its intention to consider refusal of the working holiday visa application under s 501(1) of the Act on the basis of her offences.
On 23 May 2024, the Applicant responded to the notice to consider refusal. On 24 May 2024, the Applicant, via her migration agent, responded to the notice with a statement addressing the convictions.
On 20 December 2024, a delegate of the Minister (the delegate) decided to refuse the Applicant's working holiday visa application. The decision notification was provided to the Applicant's representative by hand on 23 December 2024.
The Applicant applied to the Administrative Review Tribunal (Tribunal) on 28 December 2024, for review of the visa refusal decision.
The matter was heard on 3 March 2025 with the Applicant appeared by video from Ireland.
On 17 March 2025, the Tribunal handed down its decision setting aside the reviewable decision and remitting the matter to the decision-maker for reconsideration with the order that the Applicant’s visa application not be refused under section 501(1) of the Migration Act 1958 on the basis of the conduct which lead to her convictions of 19 December 2019. Following are the reasons for that decision.
ISSUES
Pursuant to section 501(1) of the Act, 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.
The two issues are:
·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character; and if so
·whether the Tribunal considers that the discretion in section 501(1) of the Act, to refuse to grant the Applicant a visa, should be exercised.
If the Applicant satisfies the Tribunal that the Applicant passes the character test, the refusal decision must be set aside as the power to refuse to grant the Applicant a visa under section 501(1) of the Act is not enlivened.
If the Applicant does not satisfy the Tribunal that the Applicant passes the character test, the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa is enlivened. The Tribunal must consider whether the discretion should be exercised. If the Tribunal decides that the discretion in section 501(1) of the Act should be exercised to refuse to grant the Applicant a visa, the appropriate decision is to affirm the decision under review.
If the Tribunal decides that the discretion in section 501(1) of the Act should not be exercised to refuse the Applicant a visa, the appropriate decision would be for the refusal decision to be set aside and for the matter to be remitted for reconsideration with the Direction that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa not be exercised.
EVIDENCE
The Tribunal has considered all of the evidence permissibly before it including the documents described in section 501G of the Act (“G Documents” ) and documents annexed to the Applicant’s written submissions and all of the material included in the Hearing Book, helpfully compiled by the Respondent. Although the Tribunal has considered all of the relevant material, the Tribunal has not discussed each potentially relevant document in these Reasons. Rather, the Tribunal has referred to the evidence which was considered to be the most relevant to the decision.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Subsection 501(6) relevantly provides:
(6) For the purposes of this section, a person does not pass the character test if:
(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. …...
...
Offending history
A National Police Certificate for the Applicant dated 9 November 2023 shows the following offences committed by the Applicant:
Date
Court
Offence
Sentence
19 December 2019
Waverly Local Court
Common assault
12-month community correction order and fined $660
Destroy or damage property
Fined $660
On its face, it appears that the threshold in section 501(6)(d)(i) of the Act for finding that a person does not pass the character test is a low one and that it is sufficient for the cancellation power to be enlivened that, in the event the person were allowed to enter or to remain in Australia , there is a risk that the person would engage in criminal conduct in Australia.
In this case Direction No 110– Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies. The Direction appears to purport to direct decision-makers as to the interpretation of the section 501(6)(d)(i) of the Act.
Paragraph 6 of Annex A to the Direction relevantly provides:
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.
While it is clear that the Direction cannot be inconsistent with the Act or the Regulations, and cannot, of its own accord, define or restrict the extent of the power section 501(6)(d)(i) of the Act, the Tribunal considers that the guidance provided for by paragraph 6 of Annex A to the Direction does not fall foul of these principles.
In Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970, Senior Member Puplick stated at [26] and [27]:
“It is important to note the deliberate public policy decision to specify that there needs to be merely “a” risk to enliven the operation of subsection 501(6) of the Act. In 1998, passage of the Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct) Bill inserted a new regime into the Migration Act in the form of section 501(6). That legislation provided that in assessing the threat to the community there had to be a “substantial risk” that the Applicant would offend. The Explanatory Memorandum to the Bill stated: “The requirement of “significant risk” is intended to reduce the current threshold of risk that a decision-maker can accept before making a finding that a personal will not pass the character test because they may engage in specified conduct.”
However in 2014, the Migration Amendment (Character and General Visa Cancellation) Act specifically removed the word “significant” from clause 501(6)(d) leaving it as “a” risk. On this occasion the Explanatory Memorandum stated:
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (“Sabharwal”), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
“... . Section 501(6)(d)(i) provides that a person does not pass the character test if “in the event the person were allowed to enter or to remain in Australia , there is a risk that the person would...engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.”
In Sabharwal the Full Court found that in that case the Minister had found that there was a risk that the Applicant would engage in criminal conduct in Australia. The Full Court stated that the Minister had said he “could not rule out the possibility of further offending by Mr Sabharwal”. The Full Court, citing Coker v Minister for Immigration and Border Protection [2017] FCA 929 at [62] per Moshinsky J, found that the Minister’s statement was in substance also a finding that there was a risk of the Applicant reoffending. The Full Court concluded that in their view the Minister’s conclusion that there was a risk that the Applicant might again engage in offending conduct was one which a reasonable decision-maker could reach on the materials before the Minister.
In QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855 (“QKVH”), Deputy President Forgie discussed the meaning of “criminal conduct” in section 501(6)(d) and the meaning of “risk” in section 501(6)(d)(i) of the Act. She stated at [11] to [13]:
“What is meant by the words “risk of the person engaging in conduct for which a criminal conduct could be recorded”? I note the general view that:
““.. Interpreting a composite phrase by dissecting it into its component words and seeking a meaning for each has, however, long been identified as an inappropriate method of construing such a phrase ...”
I am not concerned with a phrase as such but I will bear that in mind as I look first to the meaning of “criminal conduct”. Consistently with the statement in cl 6.1(2) of annex A of the Ministerial Direction, the reference to “criminal conduct” in s 501(d)(i) is not limited to conduct which has led to a criminal conviction. It extends to conduct “... for which a criminal conviction could be recorded ...”. As the Full Court of the Federal Court said in Minister for Immigration v Baker after considering the various references in the Migration Act to “criminal convictions” and to “past criminal conduct” and the like, the reference to “criminal conduct”:
“... is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material: see the interesting note by B Robertson, ‘Criminal Allegations in Civil Cases’ (1991) 107 LQR 194.”
In other words, it may be that the conduct led to a court’s finding the conduct proved when a person was charged with an offence but doing so without conviction. That conduct would be “criminal conduct”. It may be that the person has engaged in conduct, for which he or she could have been charged with an offence and, if the charge were proved, convicted of a criminal offence but never was. If the Tribunal is satisfied that this conduct occurred, that conduct could be regarded as “criminal conduct”. Overstaying a visa and so being in Australia as an unlawful non-citizen is not of itself criminal conduct for there is no criminal offence of that type. There are consequences, of course, such as detention and removal from the country but they are not consequences that might lead to a conviction for a criminal offence.
The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:
“... 1 the chance or possibility of suffering loss, injury, damage, etc; ...”.
Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia . In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says, “... is more than a minimal or remote chance ...” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.”
Similarly, in Frazer (Migration) [2018] AATA 593 at [20] and [21], I said the following regarding the risk threshold to enliven the cancellation power in section 116(1)(e)(ii) of the Act:
“It appears that the threshold in section 116(1)(e)(ii) is a particularly low one and that it is sufficient for the cancellation power to be enlivened that the presence of the Applicant in Australia is or ‘may’ be a ‘risk’, or would or ‘might be’, a ‘risk’ to the health or safety of an individual or individuals.
Notwithstanding the apparent low threshold for enlivening the cancellation power, the Tribunal considers that the mere possibility that a person would: engage in criminal conduct in Australia is insufficient to enliven the cancellation power. It could be said that there is a risk that any given person in the community might engage in criminal conduct but without any compelling evidence to support even the possibility of an actual risk, the cancellation power will not be enlivened.”
In the present case, there is evidence that the Applicant has committed the offences outlined above in her criminal record.
From a practical point of view, the issue is whether there is a risk that the Applicant will be convicted of the types of crimes she has committed in the past.
The nature of the Applicant’s offending is provided for in the Police Facts sheet as follows:
“…Upon completion of the fast food order, the accused continued to access the victims mobile phone, looking at the photos and videos that are stored within. Within the photos and videos, the accused observed videos and photographs of the victim having intimate relations with a previous partner.
Enraged, the accused entered the bedroom of the victim and after using her foot to wake the victim, threw the victims mobile phone, a red iPhone XR at him. The phone missed him and collided with the wall, cracking the screen. With the screen of the phone broken the accused then proceeded to smash the phone against a wall causing the casing of the mobile phone to come apart.
Offence 2: Common Assault
The accused continued to shout at the victim as she attempted to straddle the victim. The accused began to punch and slap the victim in the face, causing several red marks to appear on his face and the victim to feel immediate pain. In self defence the accused firmly pushed the victim off the bed to prevent further attack.
In an attempt to diffuse the situation, the victim left the bedroom and entered the common area or living room of the property. The accused proceeded to shout at the victim that she had already transferred all explicit images from his mobile phone to hers. As a threat, attempting to invoke a reaction, during the heat of the argument, the accused informed the victim that she had intentions to disseminate the videos and images throughout their friendship group in an attempt to degrade his character.
Concerned for the privacy of other parties captured within the images and videos, out of sheer desperation the victim took hold of the accused's phone, breaking it to prevent any dissemination.”
I accept the fact of the convictions and sentences in this case and to the essential facts on which it they were based. However, I , accept the Applicant’s evidence that she thought that the pictures on her partner’s phone were pictures of her partner having sex with another woman, proving that he had been unfaithful to her during their relationship. Such findings are permissible: see for example HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP) per Bromberg J stated at [36] and [37].
The Tribunal has before it a number of letters from the Applicant’s acquaintances which all support the Applicant’s contention that her offences were out of character and very unlikely to be repeated. These include a letter from her ex-partner, the victim of the offences which provides:
My name is [ex-partner’s name]. I am Finns ex-partner and also, in this case, the 'victim' of her assault charge. However, I do not see myself as a victim of domestic violence, which is what it states on her criminal record. I find it hard to accept that she has been left with domestic violence charges tainting her name, all based on one nights unfortunate events. Prior to this night, we had 4 amazing years together with absolutely no issues.
I have known Finn my whole life as we grew up together and we dated for 4 years. It has been 4 years since this incident occurred and I am still shocked to this day that she has been left with a potentially damaging criminal record. I have no doubt this has had a massive impact on her life and has been a life lesson for her.
Myself and Finn had a happy, healthy relationship and I still find it hard to fathom how she is in this position now. What occurred on that night was a complete accident. It was an isolated incident, nothing of the sort had ever taken place previously, nor did it ever take place again. I am aware that Finn pleaded guilty to the charges however she is not a violent or aggressive person and this unfortunate situation was one-of-a-kind. It was the one and only time I had ever seen her act aggressively. However, this was because she was under the influence of alcohol and was not in a good state of mind. She had been struggling for weeks with anxiety due to family issues and our relationship at the time was not in a good place.
Finn is, in short, a good person. She possesses a great deal of integrity and has always strived to make sure she is doing the right thing. She is extremely loving and dedicated to her family and work, and is entirely peace loving. It is heartbreaking for me that such a minor insignificant incident has led to her having a criminal record.
She has expressed to me many times that she is extremely sensitive to her transgression and is sorry for it. And whilst we are not together romantically anymore, she is still one of my closest friends and I hope this letter will give you an idea of her good moral character and help her get a chance to prove that this was an unusual occurrence.
The Applicant has repeatedly expressed remorse and has never committed another offence. Importantly, she was in the Australian community and did not re-offend from the time the offences were committed in 2019 until her visa application was refused in late December 2024. The Tribunal considers that the offending occurred in a very specific set of circumstances where the Applicant, who usually does not drink and had not drunk to access until the evening of the offending, was drunk and found images of her partner having sexual relations with another woman. It was in these circumstances where the offending occurred. These circumstances are very unlikely to be repeated.
As mentioned above, the Direction itself provides that one would fail the character test on the basis of section 501(d)(i) “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. “ and that “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.”
The Tribunal considers that the guidance in the Direction is consistent with the authorities as discussed above.
The Tribunal considers that there is not evidence in this case suggesting that there is more than a minimal or remote chance that the Applicant will engage in criminal conduct in Australia. Rather, the Tribunal considers that the fact that the Department allowed the applicant to remain in the community for almost 5 years after the offending indicates that the Department did not consider that the applicant would re-offend. The fact that she did not re-offend in that time really puts the matter beyond doubt.
The Tribunal therefore finds that the Applicant does not fail to pass the Character test by reference to section 501(d)(i) of the Act. Thus, the discretion to refuse the Applicant’s visa application is not enlivened.
DECISION
The Tribunal sets aside the reviewable decision and remits the matter to the decision-maker for reconsideration with the order that the Applicant’s visa application not be refused under section 501(1) of the Migration Act 1958 on the basis of the conduct which lead to her convictions of 19 December 2019.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of General Member Tigiilagi Eteuati
Solicitor for the Applicant: Mei Guo
Brightstone LegalSolicitors for the Respondent:
Ms Lucinda Taylor
Minter EllisonFile No 2024/11006
Between Finn Fortune (Applicant)
AndMinister for Immigration and Multicultural Affairs (Respondent)
Heard on 3 March 2025
Before General Member Eteuati
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