Haque and Minister for Home Affairs (Migration)

[2018] AATA 4305

Haque and Minister for Home Affairs (Migration) [2018] AATA 4305 (21 November 2018)

Division:GENERAL DIVISION

File Number(s):      2018/5056

Re:Mohammad Haque

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:21 November 2018

Place:Sydney

The decision of the Minister’s delegate, made on 3 August 2018, to refuse the issue of the visa applied for is set aside and remitted to the Minister for reconsideration with a direction that the visa applied for not be refused on character grounds under section 501 of the Migration Act.

............................[sgd]............................................

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION – visa refusal  – character test – criminal record – dishonestly obtain financial advantage by deception - primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations -  Impact on family - set aside and remitted

LEGISLATION

Crimes Act 1900 (NSW)

Migration Act 1958 (Cth)

CASES

Abebe v Commonwealth [1999] HCA 14 [197]

Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755

AFY18 v Minister for Home Affairs [2018] FCA 1566

Assafiri v Minister for Immigration and Border Protection [2014] AATA 35

BFXK v Minister for Immigration and Border Protection [2018] AATA 886

Bushell v Repatriation Commission [1992] HCA 47

CHFQ and Minister for Home Affairs (Migration) [2018] AATA 3858

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307

Do and Minister for Immigration and Border Protection [2016] AATA 390

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931

Fu (Migration) [2018] AATA 732

Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

KDSP and Minister for Immigration and Border Protection [2017] AATA 2169

LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936

Minister for Immigration v Baker [1997] 153 ALR 463

Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13

Murphy and Minister for Immigration and Border Protection [2018] AATA 750

Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639

QKVK and Minister for Home Affairs (Migration) [2018] AATA 1855

Rabino and Minister for Immigration and Border Protection [2016] AATA 999

Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306

Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634

Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472

Shi v Migration Agents Registration Authority [2008] HCA 31

Sui and Minister for Immigration and Citizenship [2008] AATA 1062

Suleiman v Minister for Immigration and Border Protection [2018] FCA

SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48

The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273

Williams v Minister for Immigration and Border Protection [2014] FCA 674

YNYQ v Minister or Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4^th edition, 2015)

Department of Immigration and Border Protection (Cth), Citizenship Policy, 1 June 2016

Ministerial 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

Chris Puplick AM, Senior Member

21 November 2018

1. Mr Mohammed Haque appeals to this Tribunal against a decision by the Minister to refuse to grant him an Employer Nomination (Permanent) (Class EN) visa on the grounds that he fails to meet the character test required under legislation.

   BACKGROUND: PERSONAL

2. Mr Mohammed Haque was born in 1982 in Bangladesh. He first arrived in Australia in April 2007. Since that time he has resided predominantly in Australia and has made only a number of short visits back to Bangladesh.[1] During one of those visits he married Ms Rubna Akter who returned to Australia with him. They have a son who was born in Australia in May 2015.

   [1] Section 501 – G Documents at [5].

3. During his time in Australia he has worked in a number of jobs primarily either in restaurants or for Big W.[2] He has also worked in a number of places where he was paid cash-in-hand, without reporting this income to the Australian Taxation Office. However, it was confirmed for the Tribunal by the Respondent that, at no time, did Mr Haque’s employment arrangements breach any of his visa conditions.

   [2] Ibid at [47].

   BACKGROUND: VISA STATUS

4. Mr Haque has held a variety of visas since his arrival in Australia[3]:

   [3] Ibid at [5].

   ·He arrived on 10 April 2007 holding a Student (Temporary) (Class TU) visa

   ·On 28 July 2011 he was granted a Temporary Graduate (Subclass 485) visa

   ·On 13 December 2013 he was refused a Skilled (Residence) (Class VB) visa as he did not, at that time, meet the English language requirements

   ·On 17 June 2014 he was refused a Temporary Business Entry (Class UC) visa as he did not hold a substantive visa, his 485 visa having expired on 28 January 2013

   ·Mr Haque departed Australia and on 14 July 2014 was granted a Temporary Business Entry (Class UC) visa whilst offshore which enabled him to return to Australia (on 21 August 2014[4]) when he lodged (via his Migration Agent[5]) an application of an Employer Nomination (Permanent) (Class EN) visa on 29 September 2016.

   ·His Temporary Business Entry visa was cancelled on 29 May 2017 following his conviction (see below) under section 116 [6]of the Migration Act 1958 (the Act).

   ·The Department informed Mr Haque of their intention to refuse his visa application (of 29 September 2016) on 20 March 2018[7] and invited him to provide his comments on this advice. He did so on 16 April 2018.

   ·The Department considered Mr Haque’s representations and on 3 August 2018 the Minister’s Delegate refused the permanent visa under the provisions of section 501(1) of the Act.

   ·Mr Haque received notification of the decision on 30 August 2018 (his Migration Agent was notified the following day) and on 1 September Mr Haque applied to this Tribunal for a review of that decision.

   [4] Ibid at [101].

   [5] Section 501 – G Documents at [20]

   6 Migration Act 1958 (Cth), Section 116. (Power to cancel).

   7 Ibid at [105].

5. Mr Haque’s application was heard by the Tribunal on 12 and 13 November 2018 and under the provisions of section 500(6L) of the Act the Tribunal is required to make a determination of this matter by 22 November 2018, failing which the Minister’s decision is affirmed.

6. As Mr Haque’s visa has been refused because of his criminal conviction it is necessary to set out the legislative framework within which this decision was made.

   LEGISLATIVE FRAMEWORK

7. The refusal of Mr Haque’s application has been made under the provisions of section 501(1) of the Act which provides as follows:

   501(1) 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.

8. The character test itself is set out in section 501(6) of the Act. This section prescribes a number of bases upon which a person may be deemed to have failed to pass the test. Relevantly for this application, the section provides:

   501(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 remain in Australia, there is a risk the person would:

   (i) engage in criminal conduct in Australia …..

9. In Mr Haque’s case, unlike some other provisions of the Act dealing with matters of visa refusal or cancellation, this is a relatively straightforward set of propositions: the Minister may refuse to grant a visa if the Minister is satisfied that an applicant is likely to commit some form of criminal act if allowed to remain in Australia.

10. Although the Minister’s delegate has come to the conclusion that there is such a risk in the case of Mr Haque, that conclusion is not binding on the Tribunal. It must make its own assessment of the facts and draw its own conclusions from them.

    THE TRIBUNAL’S INDEPENDENT ROLE AS THE DECISION-MAKER

11. The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[8]

    [8] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307.

12. It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:

    “The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[9]

    “The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[10]

    “The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[11]

    “….in reviewing the Board’s decision, we must make the decision afresh and are not limited to a consideration of whether the Board’s decision was open on the evidence. We are not limited to the evidence before the Board.”[12]

    “The review undertaken by the Tribunal was in the nature of a de novo review on the merits. For that purpose, the Tribunal stood in the shoes of the original decision-maker (here the maker of the non-revocation decision) and was so obliged to apply the criteria governing the exercise of the power in s 501 CA of the Act at the time of its own decision.”[13]

    “Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[14]

    “…. the A.A.T is an administrative decision-maker, under a duty arrive at the correct or preferable decision in the case before it according to the material before it.”[15]

    [9] Re Drake and Minister for Immigration and Ethnic Affairs(No.2) [1979] 2 ALD 634 at [640].

    [10] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [page 11].

    [11] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4^th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198; Commonwealth v (1985) 8 ALD 554 and Re KLGL and QCYY Australian Prudential Regulation Authority [2008] AATA 452.

    [12] Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission (2000) 62 ALD 472 at [72].

    [13] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.

    [14] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.

    [15] Bushell v Repatriation Commission [1992] HCA 47 at [3] per Brennan J.

13. It is thus clear that although the original decision-maker has found Mr Haque not to be a person of good character and to have determined that he fails the legislated character test – as indeed they had no capacity to do otherwise - in this instance that decision leads to the consideration of whether or not there is “another reason” why the visa refusal should be set aside. The original decision-maker has determined that no such reason exists, so it is now for the Tribunal to make its own decision in that regard.

14. It is up to the Tribunal to assess the material before it and to assign it the weight and value it thinks appropriate. This view is clearly stated in the authorities:

    “The weighing of various pieces of evidence is a matter for the Tribunal.”[16]

    “In the end the criticisms made by the applicant of the Tribunal’s reasoning are criticisms if the factual findings it made and are criticisms that fasten upon the weight that the Tribunal attributed to various pieces of information that it had available for consideration. But what weight the Tribunal gave to those various pieces of information was for it to say.”[17]

    [16] SZJSS and Others v Minister for Immigration and Citizenship [2010] HCA 48: unanimous decision of the High Court.

    [17] Abebe v Commonwealth [1999] HCA 14 [197]] per Gummow and Hayne JJ.

    MR HAQUE’S CRIMINAL RECORD

15. Again, unlike many instances coming before the Tribunal, Mr Haque’s offences are limited in number, in fact, there is only one.

16. On 4 April 2017 Mr Haque was convicted of “dishonestly obtain financial advantage by deception.”[18]

    [18] National Police Certificate at Section 501 – G Documents at [57].

17. He was prosecuted under section 192E of the Crimes Act 1900 (NSW) which reads:

    1A person who, by any deception, dishonestly:

    (a)Obtains property belonging to another, or

    (b)Obtains any financial advantage or causes any financial disadvantage, is guilty of the offence of fraud.

    Maximum penalty: Imprisonment for 10 years.

18. Mr Hague, upon conviction was released and placed upon a good behaviour bond for two years and fined $2,000.[19]

    [19] Idem.

19. The essence of Mr Haque’s offence was this: he obtained a bank loan on the basis of presenting the bank’s lending officer with a false statement of his earnings.

20. It is necessary to describe in some detail the nature of this offence and its immediate consequences. This narrative is based upon details contained in the Statement provided by Mr Haque to the Tribunal[20] (where unchallenged by the Respondent), details provided in the Respondent’s Statement of Facts, Issues and Contentions and unchallenged oral evidence given by Mr Haque at the Tribunal hearing.

    [20] Dated 18 October 2018, Applicant’s Submission at [34]-[38].

    (i)Prior to February 2013 Mr Haque was working at a variety of jobs. He told psychologist H R Dadgostar, who provided an assessment report, that he did so because he was “desperate to pay all his bills at once as his wife was facing a very difficult pregnancy.”[21] He had full-time employment as a shelf packer at Big W. At the same time, a friend of his (Mr Safayet) arranged for him to get work, cash-in-hand, as a food packer and deliverer at Apex Pacific Services (Apex) at Mascot. His employment at Big W was registered with the Tax Office that at Apex was not.

    [21] Applicant’s Submission at [27].

    (ii)At the time Mr Haque was living in Narwee and he needed to be at Mascot to work at Apex from around 0900 hours until 1300 hours. He would then travel to East Gardens and work at Big W from around 1400 hours to 2300 or 2400 hours. This travel consumed a considerable period of time on public transport (which was not always available) and, as a result Mr Haque decided to buy himself a motor vehicle.

    (iii)Mr Haque had a friend who was willing to sell him his car for somewhere between $13,500 and $15,000. Mr Haque decided to obtain a bank loan to facilitate this purchase.

    (iv)At the time Mr Haque had, or had held, several other bank accounts[22] and was familiar with Australian banking practices.

    [22] Stated by Mr Haque in oral evidence

    (v)Apparently a friend of his advised him that Bank West was a good institution from which to get a loan and so Mr Haque decided initially to open a small account with them into which Mr Safayet arranged to pay the money Mr Haque was earning at Apex. This was done by bank transfer from an account owned/operated by Mr Safayet direct into the new account of Mr Haque. There was never any direct payment into this, or any other account by Apex itself.  This new account was opened on 24 January 2013 at the Roselands Branch of the bank.

    (vi)Mr Haque was apparently earning more at Apex than at Big W and so he decided that he would present Bank West with a statement of earnings which implied that he was working for Apex. He was not – he was in effect working at but not for Apex and was being paid in cash by Mr Safayet. Nevertheless he somehow obtained payslips which appeared to have come from Apex showing his earnings.

    (vii)On 28 February 2013 Mr Haque attended at the North Sydney branch of the Bank to apply for a loan. He went to North Sydney because his friend who had initially advised him to go to Bank West apparently knew an employee there, and the friend accompanied him on the visit.[23]

    (viii)When Mr Haque applied for a loan he apparently indicated that its principal purpose was to purchase a car, he did not however, specify the exact amount in question needed for that purchase. He presented the Bank with details of his identity (drivers’ licence), his current Bank West account and the “Apex” payslips.

    (ix)On the basis of these the Bank advised that he was eligible for a maximum loan of $34,101.57[24] including bank fees and credit protection insurance. The loan was granted on the basis of being repaid over a 7 year period at $650 per month. While $34,000 was the actual loan recorded it appears that only $32,000 was actually placed in Mr Haque’s account, the rest being other bank fees and charges which made up the totality of the loan.

    (x)Once he had secured the loan Mr Haque purchased the car for $13,500. He made some other expenditure to the extent of about $2,500.

    (xi)Within a few days Bank West came to realise that the payslips, allegedly from Apex, were false. They froze the account and took back the loan amount which had not been spent – amounting to about $16,000.

    (xii)It is not known how or when Bank West notified the Police of this incident[25]  but Mr Haque was not contacted by the Police until sometime in April 2016.

    (xiii)In the meantime Mr Haque continued repayments of the balance of the loan until sometime in late 2014 when he fell behind with his repayment due, he says, to increasing expenses associated with his wife’s pregnancy.

    (xiv)After he was contacted by the Police he was also contacted by Pioneer Credit Solutions acting on behalf of the Bank. They advised him that his outstanding debt to the Bank at that stage was $12,500. He then made an offer to Pioneer Credit to repay a sum of $5,000 which was accepted and, once paid, the remainder of the debt was written off by the Bank. The bank thus suffered a net loss over the period in the order of $7,500.

    (xv)Following his being contacted by the Police, on about 3 April 2016,  Mr Haque voluntarily attended an interview at Kogarah Police Station where he gave a statement which resulted in being charged and brought before the Court on the charge outlined above.

    [23] There is no indication whether or not the Bank officer known to the friend was in any way directly involved in the assessing or granting of the loan in question.

    [24] Section 501 – G Documents at [61].

    [25] Idem.

21. It is also worth setting out in some detail the remarks of the Sentencing Magistrate when Mr Haque was before the Court. His Honour stated:

    “Mr Haque, as your solicitor has indicated, you knew full well when you were reliant on these documents they were dodgy and that you shouldn’t have been doing it, yet you produced these documents to the bank so as to obtain the benefit of this loan. This is a matter than requires a penalty that reflects the need for general deterrence. There must be a message sent to the community that these sorts of frauds are inappropriate and that they are things that the court must express its unhappiness with by the imposition of penalties that have some real impact.

    I note that you had no prior history, I note that your personal circumstances, you’re married, you have young child. I also note that you are a hard working fellow, who continues to be in employment. …..

    It does seem to me that a section nine bond is an appropriate outcome, along with a fine …… I think that is the appropriate result, that there needs to be that message sent. …. You’re going to get a fine. Your financial circumstances are going to be worse off. But that’s something you’ve brought on yourself, but also this good behaviour bond. To ensure that you are reminded that if any of this type is not repeated. I have some confidence that it won’t be, that this will act a reminder to you that it must not.”[26]

    [26] Applicant’s Submission at [76]. Sentencing remarks of Magistrate O’Brien.

1. The Tribunal notes that, given that the maximum penalty under the statute is 10 years imprisonment, a section 9 bond and a small fine, must be taken as indicative of the seriousness with which the Court viewed this particular offence. In addition it notes the learned Magistrate’s belief that he had confidence that such an offence was not likely to be repeated and that otherwise Mr Haque appeared to be a hard working person of generally good character. Finally it notes that the Court emphasised the need for the sentence to indicate a degree of community deterrence and messaging rather than a specific sentenced focused upon Mr Haque as the offender in question.

2. The Tribunal is however concerned that while in October 2017 Mr Haque’s solicitor is telling the Court that Mr Haque “knew full well … these documents were dodgy”, he nevertheless in his statement to the Department on 14 April 2018 continued to maintain that “I never had any idea that the payslips were false.”[27]

   [27] Section 501 – G Documents at [77].

3. Pressed on this point by the Tribunal in the hearing, Mr Haque’s solicitor was unable to say why Mr Haque persisted in this latter statement when clearly, in any objective assessment, he must have known that the payslips were false. His latter admissions to this effect notwithstanding his attempts at denial as late as April this year do not speak well in his favour.

   TESTIMONY BEFORE THE TRIBUNAL

4. Mr Haque gave detailed testimony before the Tribunal and was subject to detailed cross-examination by the Respondent.

5. He outlined details of his family situation and in particular indicated that he would fear returning to Bangladesh because his family and others would become aware of why he had been forced to leave Australia and this would expose him to social isolation and shame. He indicated that he was concerned that his wife and child would suffer significantly if they were required to return to Bangladesh where living standards and access to things such as education and medical treatment are significantly worse than is the case in Australia.

6. He also indicated that he had obtained various qualifications in Bangladesh in the information technology/computer field and that he came to Australia to study in these areas but found that he was not meeting the higher standards required so changed courses and completed an Advanced Diploma in Hospitality Management and a Certificate III in Hospitality at the Windsor Institute of Commerce in Sydney.

7. In relation to his offence, he admitted to all the relevant details and expressed his contrition, although was not able to explain in an entirely satisfactory way why he maintained on several occasions that he did not know the Apex payslips were false.

8. When pressed on the question of why he took a loan for a larger amount than was needed for the car purchase, his response was to the effect that the larger amount was what the Bank “offered” and he took it. He indicate in evidence that he considered buying a car for his wife in addition to his own purchase and that he used some of the money to pay other outstanding bills. He was asked why he did not sell the car he had bought in order to pay back the outstanding debt to the Bank and answered that such a course of action never occurred to him nor was it suggested by anyone.

9. The Respondent raised a further issue related to Mr Haque’s actual application for the Permanent Employer Sponsor visa of 29 September 2016.  That application form contains a question in the following terms:

   “Has any applicant ever been charged with any offence that is currently awaiting legal action?”

10. On Mr Haque’s behalf, his Migration Agent answered “NO”. The answer should have been “YES”, as at that time, Mr Haque’s charges under the NSW Crimes Act were pending before the Courts but had not yet been heard and determined. In response, Mr Haque indicated that he had a conversation with the Migration Agent and that it was on the basis of advice from him that his negative answer went forward. This was done of the basis that the matter had yet to be determined. However the very purpose of the question is to ascertain this fact and regardless of the advice of the Migration Agent (untested as to veracity before the Tribunal) the responsibility for a false answer lies exclusively with Mr Haque.

11. The Tribunal accepted Mr Haque as a witness who was telling the truth at the hearings, who was forthcoming with answers and who had a genuine understanding of the gravity of his offence. He also had a clear appreciation of the consequences of such future behaviour were he to be allowed to remain in Australia.

12. Mr Haque called a number of witnesses on his behalf:

    oMr Mohammed Rizwan Rahman has known Mr Haque for 19 years back to their days as students together in Bangladesh. He says that Mr Haque is a person of good character and integrity and that he is, moreover a good husband and father. He is a person of generosity who helps others. He expressed a degree of “surprise” at Mr Haque’s dishonesty and felt this was exceptional and out of character,[28] although he was aware that Mr Haque was “struggling financially and believe his experience contributed to his behaviour.”[29]

    oDr Naveed Nadvi is an Australian citizen of Bangladeshi origin who has known Mr Haque for some time. Dr Nadvi is a highly qualified data analyst and academic working for Sydney University. He attended the same university as Mr Haque in Bangladesh and has since moved to Australia, completing his PhD and working here since 2007. Mr Hague and he shared an apartment for a number of years and he is familiar not only with Mr Haque’s current situation, his Australian family, the details of his offending but also the nature of his family ties in Bangladesh. Dr Nadvi told the Tribunal that he found Mr Haque’s behaviour in relation to the false payslips out of character but he also confirmed Mr Haque’s concerns about what would be his social environment and his family situation were he to be repatriated to Bangladesh. Dr Nadvi was an impressive witness and there is no reason, in the Tribunal’s mind, to dispute his evidence.[30]

    oMs Rubna Akter, Mr Haque’s partner gave evidence on his behalf. Her evidence showed clearly that Mr Haque had not shared with her details of his offending behaviour,[31] a feature characteristic of many such situations and replete with a whole raft of culturally sensitive considerations. She expressed genuine concern about the prospect of returning to Bangladesh but, more to the point, expressed concern about Mr Haque’s inability to look after his son and provide for his financial support while he was in detention. The Tribunal also noted an earlier comment suggesting that Ms Akter was sufficiently concerned over Mr Haque’s behaviour that she would contemplate returning to Bangladesh with her son, leaving Mr Haque to his own fate. [32] This is a position retreated from by Ms Akter in her evidence to the Tribunal. Evidence suggests that Ms Akter was not fully aware of the details of Mr Haque’s offending and clearly she was strongly motivated to keep her family together in Australia. The Tribunal is mindful that, in a slightly different context, the Australian Citizenship Policy [33]warns decision-makers to be wary of evidence from family members, and in this case the Tribunal bears that injunction in mind.

    oA lengthy psychologist report was received from Mr H R Dadgostar who also appeared (by telephone) as a witness. His qualifications in forensic psychiatry were vigorously challenged by the Respondent, but given his length of clinical practice, the Tribunal is prepared to give proper regard to his qualifications and accepts his professional report. His view was that Mr Haque had learned serious lessons from his offending experience, that he suffered a degree of depression as a result of his current condition and that there was a very small degree of possibility that he would offend again. He based his assessment on a number of clinical observations of Mr Haque, the administration of both the Empathy Quotient psychometric assessment and the Kessler (K10) psychological distress scale. Again, the Tribunal sees no basis not to accept Mr Dadgostar’s professional opinions as submitted.[34]

    oThe Tribunal also received a letter of support from Councillor Mohammed Zaman on the Canterbury Bankstown City Council attesting to a lengthy involvement with Mr Haque, expressing surprise as his offence and conveying his observations of Mr Haque as a fundamentally good and honest person, remorseful for his actions.[35]

    [28] Applicant’s Submission  at [32]-[33].

    [29] Section 501 – G Documents at [96].

    [30] Applicant’s Submission  at [39]-[41].

    [31] Applicant’s Submission  at [42]-[44].

    [32] Section 501 – G Documents, report of Mr Dadgostar at [67].

    [33] Australian Citizenship Policy, page 155.

    [34] Section 501 – D Documents at [66]-[71].

    [35] Ibid at [95].

    REQUIREMENT OF THE ACT

13. The basis upon which this visa refusal has been made, as outlined above, is that Mr Haque is at risk of “engaging in criminal conduct” if allowed to remain in Australia. If he is, then he fails the character test.

14. The Tribunal has to approach its decision in Mr Haque’s case through a two-step process. In the first instance it must decide if Mr Haque passes or fails the character test. If he fails, then the Tribunal is required to consider whether or not there is “another reason” that the Minister’s refusal to exercise the discretion to grant a visa should be set aside.

15. Apart from having regard to the provisions of the Act, the Tribunal is required to have regard to the directions provided to it by Ministerial Direction 65.

    STARTING WITH THE ACT

16. The Minister has decided to refuse Mr Haque’s visa application on the basis that he (the Minister) has formed a view that Mr Haque, if allowed to remain in Australia will, be likely to “engage in criminal conduct” and that. As a result, he fails the character test under section 501(6)(d)(i) of the Act.

17. “Criminal conduct” is not defined in the Act and it unclear exactly what it means. In Baker, the Full Federal Court opined that the expression:

    “ …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.”[36]

    [36] Minister for Immigration v Baker [1997] 153 ALR 463 at 469 per Burchett, Branson and Tamberlin JJ.

18. As pointed out by Deputy President Forgie in QKVH[37] the terms of Annex A of Ministerial Direction 65 suggest that any conduct for which a “criminal conviction could be recorded”[38] invites of such a wide interpretation as to provide no real guidance as to the general applicability of this test.

    [37] QKVK and Minister for Home Affairs (Migration) [2018] AATA 1855 at [11]-[12].

    [38] Ministerial Direction 65 Annex A at 6.(2)

19. Taking these statements as guidance, the Tribunal has sought to answer the question as to whether there is more than a minimal or remote chance that Mr Haque would, in the future, engage in behaviour likely to bring him before the courts to face a criminal charge.

20. It is of the opinion that there is almost no prospect of Mr Haque engaging in criminal conduct in the future. Even applying the very low-threshold test of there being a “more than minimal or remote chance” as outlined in Annex A, clause 6 (2) of the Direction, the Tribunal is satisfied that Mr Haque does not, under this rubric, fail the character test.

21. As explained above, the character test contains a number of elements which must be satisfied in order for a person to pass. The issue of possible future criminal conduct is the only element among the many upon which the Minister has sought to rely in determining that Mr Haque does not pass. Given that the Tribunal finds that Mr Haque does not fail on this basis, it follows that it finds that Mr Haque passes the character test.

    BELT AND BRACES

22. In the event that the Tribunal were to be found in error in coming to that conclusion, it is prepared to enliven (although regarding it as unnecessary) the provisions of Ministerial Direction 65 and to consider them in detail.

    MINISTERIAL DECISION 65

23. Under section 499 of the Act, the Minister is authorised to issue Directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.

24. Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation. Failure to take proper account of the Direction will lead the Tribunal into jurisdictional error.

    [34] Authorities in this Court have expressly accepted that a failure to comply with ministerial directions made under s 499 can constitute a jurisdictional error.

    [35] Several Full Court decisions have treated this particular Direction as not only binding on the Tribunal, but also as the source of potential jurisdictional errors for non-compliance.[39]

    [39] Williams v Minister for Immigration and Border Protection [2014] FCA 674 per Mortimer J. Citations omitted.

25. However this is not entirely a black and white or automatic process.

26. As far back as 1979 the Full Federal Court held that:

    “If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[40]

    [40] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at [420].

27. In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[41]

    [41] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) (1979) 2 ALD 634 at [640].

28. In 1981 the Full Federal Court warned that:

    “On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[42]

    [42] Nevistic v Minister for Immigration and Ethnic Affairs (1981) 34 ALR 639 per Lockhart J at [651-652]. See also Frank J at [642] and Deane J at [646].

29. In 1985 the Tribunal noted:

    “Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[43]

    [43] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].

30. In 1994 the Full Federal Court opined:

    “it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[44]

    [44] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28].

31. Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded (some years after her decision in Williams):

    “…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[45]

    [45] G v Minister for Immigration and Border Protection (2018) FCA 1229 at [210].

32. This Tribunal draws heavily upon the recent decision by Senior Member P W Taylor SC in Aciek,[46] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity:

    7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case

    [35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.

    [46] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.

    MINISTERIAL DIRECTION 65: PROVISIONS – PRIMARY CONSIDERATIONS

33. The Tribunal returns to the provisions of Ministerial Direction 65. The Direction establishes various matters for consideration, describing some as “primary considerations” and others as “other considerations”.

34. Three “primary conditions” related to revocation requests are set out as:

    ·Protection of the Australian community;

    ·Best interests of minor children in Australia affected by the decision; and

    ·Expectations of the Australian community.[47]

    [47] Part 13.

35. The protection of the Australian community requires a decision-maker to have regard to both the likelihood of the applicant reoffending if permitted to remain in Australia and the potential adverse consequences of any such reoffending. There are two principal elements for consideration, the nature and seriousness of the conduct under question and the risk to the Australian community should the applicant reoffend.

36. Part 13.1.1 of the Direction makes it clear that in assessing the nature and seriousness of the offences regard should be had to such matters (inter alia) as whether the offences involved violence or sexual violence and whether they were committed against vulnerable people. The decision-maker should also consider the frequency of offences and the sentences imposed together with the cumulative effect of repeated offending and whether they demonstrate an increase in their level of seriousness.

37. How does this relate to Mr Haque’s position? The answer to that must be – very minimally, if at all.

38. In discussing the character test requirements and provisions (above) the Tribunal has come to the conclusion that there is only the most slight or remote chance that Mr Haque will offend again. As such there is no concern, on the part of the Tribunal for steps to be taken to secure the protection of the Australian community. Even in the event of there being some reoffending, the nature of that, based on past experience is unlikely to pose any measurable risk to the community and given that Mr Haque’s offence was a singular event, no issue of cumulative impact is likely to arise.

39. To the extent that this question can be answered objectively, is there a risk of Mr Haque re-offending? In the opinion of the Tribunal the answer to this question is NO.

1. The Tribunal notes the remarks to this effect of the Sentencing Magistrate and the relatively benign sentence imposed on Mr Haque for his offence. It notes that there is considerable character witness evidence that Mr Haque is a person of good character and that the one-off attempt to deceive the Bank was “surprisingly” out of character. It notes that Mr Haque made repayments to the Bank as he was obliged to do for as long as he could until financial pressures of his wife’s pregnancy compromised this. It also notes his statements of regret and contrition which is accepts as genuine.

2. The offence itself was one of claiming that payments were being made to Mr Haque by one employer (Apex) when in fact they were being made by another individual. They did not overstate or falsify (as far as can be told) the quantum, so that the material before the Bank was not false in terms of its numerical veracity, it was false in terms of its origin.

3. The Tribunal does not accept the Applicant’s suggestions that somehow the Bank was at fault in terms of some failure to check bona fides or verify payslips on the spot. Clearly checks were made at a later stage and falsifications were identified, although it is unclear as to when the Bank took steps to involve the Police in further investigations.

4. Mr Haque supplied false information and the Tribunal believes that he did so knowingly. The Tribunal also accepts that he did so, motivated by his need to buy a car to be able to continue to work at two jobs to support his family. This is not an excuse but it is his explanation.

5. As to the question of “risk” as outlined in the Direction, the Tribunal must take into account all the matters in evidence before it. . In Fu (Migration) [2018] AATA 732, the Tribunal, in assessing a student visa cancellation, stated in circumstances which I believe to be properly analogous:

   “As noted in MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.”[48]

   [48] Fu (Migration) [2018] AATA 732 (3 April 2018) per Member Jan Redfern at [30].

6. Furthermore, it is the responsibility of the Tribunal to give what weight it thinks appropriate to each element of that evidence.

   “It was a matter for the Tribunal to determine the evidence upon which it would place weight in assessing that question.”[49]

   [49] Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27 at [133] per Siopis J.

7. The Tribunal notes that Direction 65 itself directs attention to what it states to be “an unacceptable” risk.[50] Clearly then, government policy recognises that there are some risks that are “acceptable”. Indeed the guiding Annex to the Direction refers to a “more than minimal or remote” chance before the provisions of the section are enlivened.[51]

   [50] The Direction at 13.1.2 (1).

   [51] The Direction at Annex A “Application of the Character Test”, section 6(2) “Risk in regard to future conduct (section 501(6)(d)).

8. Common sense demands no less – there cannot be any entirely risk free situations.

9. The Tribunal respectfully agrees with the comments of Senior Member M J McGrowdie in KDSP v Minister for Immigration and Border Protection to the effect, in relation to admittedly a different category of offence (as outlined by the Respondent), that:

   “The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant’s behaviour, I would consider that the Australian community would not assume that the applicant will reoffend ….. I conclude that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a limited stay visa, with the applicant knowing that any infringement would likely result in a cancellation of that visa.”[52]

   [52] KDSP and Minister for Immigration and Border Protection [2017] AATA 2169 at [36].

10. The best interests of minor children clearly suggest that Mr Haque be allowed to remain in Australia. The Tribunal feels no need to argue the point further, in fact the Respondent in their Statement of Facts, Issues and Contentions goes so far as to almost instruct the Tribunal when it says: “The Minister concedes that this consideration weighs against the decision to refuse the visa. The Tribunal should make clear and positive finding to that effect.”[53] The Tribunal is referred to authority on this point[54] and, in collegiate mood takes the Respondent’s comments not as an attempt to direct but rather, as their representative at the hearing out it, “an attempt to help ensure that the Tribunal did not fall into error.” The Tribunal is grateful for that assistance.

    [53] Respondent’s Statement of Facts, Issues and Contentions at [33].

    [54] YNYQ v Minister or Immigration and Border Protection [2017] FCA 1466 at [14]-[22].

11. The expectations of the Australian community: Dealing with the expectations of the Australian community is always a difficult task for the Tribunal. Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they would be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand they would be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives and act responsibly.

12. The Direction itself gives only minimal guidance in the interpretation or application of this consideration. It states:

    “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 not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because of the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”[55]

    [55] Direction 65 at 13.3.

13. This statement is replete with qualifications such as “may be appropriate”, or “unacceptable” risk and clearly leaves significant discretion in the hands of the decision-maker.

14. In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed, by intention, unfavourable to the applicant.[56] However as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.

    [56] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [126].

15. Deputy President Block outlined one of the inherent difficulties with this part of the Direction, saying it:

    “is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. ….. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.”[57]

    [57] Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7].

16. Similarly Deputy President McCabe has stated:

    “The third primary consideration is complicated by the fact the Direction does not give a clear indication of how a decision-maker might divine the expectations of the Australian community.”[58]

    [58] LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936 at [54].

17. In his concluding remarks in this matter, the Deputy President, after reviewing the evidence of the contrition and rehabilitation of the applicant in question stated:

    “In all the circumstances, I am not satisfied this consideration weighs against the exercise of the discretion. Indeed, it may actually weigh in favour of the exercise of the discretion.”[59]

    [59] Ibid at [58].

18. In Murphy v Minister for Immigration and Border Protection[60], Senior Member P W Taylor SC wrote:

    [58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.”

    [60] Murphy and Minister for Immigration and Border Protection [2018] AATA 750.

19. The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[61] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in visa refusal cases should be considered.

    [61] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [68].

20. Deputy President McCabe in Do and Minister for Immigration and Border Protection[62] reflected on the question of second chances when he said that:

    A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.

    [62] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].

21. In The Trustee for the Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, “in recognition (of) his life changes” [63]since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.

    [63] The Trustee for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].

22. In this case the Tribunal believes that the expectations of the Australian community would be essentially favourable to Mr Haque. It does not believe that it would see his offence as particularly serious (perhaps taking into account the relative lightness of the sentence imposed); it would not feel that either vulnerable people or society as a whole were menaced by Mr Haque’s behaviour and it would not think that failing to be entirely honest on a visa application form, working for cash and not telling the Tax Office are the sort of offences from which either it needed protection nor that they justified disrupting the life of a young family in Australia and repatriating them to Bangladesh. If the expectations of the Australian community is to be a concept of any meaning, then the Tribunal cannot avoid thinking that the community’s attitude towards a minor loss by a Bank might have elements of both caveat emptor regarding their lending practices coloured by a touch of schadenfreude.

23. None of this is to excuse what was unlawful and improper behaviour but rather to bring the assessment of that behaviour within the rubric of “community expectations” in relation to the consequences and outcomes.

    MINISTERIAL DIRECTION 65: OTHER CONSIDERATIONS

24. The Tribunal must then go on to consider what are outlined in the Direction as “other” considerations. As Colvin J has made clear in Suleiman that, “To treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[64] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant[65].

    [64] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].

    [65] Ibid at [26].

25. This was made more explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:

    “… factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.”[66]

    [66] CHFQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].

26. The Direction specifies, in relation to visa applications, that the “other” considerations are:

    ·International non-refoulement obligations

    ·Impact on family members

    ·Impact on victims

    ·Impact on Australian business interests.

27. In relation to international non-refoulement obligations, the Tribunal notes that the Applicant himself has not formally raised this as an issue for the Tribunal’s consideration. It does not appear in the Applicant’s Statement of Facts, Issues and Contentions. However the matter was addressed both by the Delegate in making their initial determination[67] and in the Respondent’s Statement of Facts Issues and Contentions[68].

    [67] Section 501 – G Documents at [17]-[18].

    [68] Paragraphs [38]-[39].

28. This arises as a result of Mr Haque having made some reference to his father-in-law having been kidnapped and held for ransom in Bangladesh, his concerns that people returning to that country from Australia are assumed to have a degree of wealth which may put them at risk and the social consequences which he might face were the true cause of this return to be made known[69] (see above).

    [69] Section 501 – G Documents at [72]-[81], Mr Haque’s statement of 14 April 2018.

29. The Tribunal agrees with the Respondent’s submission that it is not necessary for it to discuss this claim at any length, especially given that it was not actively pursued by the Applicant. Were any such claim for possible protection to be raised it would be assessed under the separate provisions of Ministerial Direction 75 and hence not a matter for immediate determination.[70]

    [70] Ministerial Direction 65 at clause 12.1(4).

30. The impact on Mr Haque’s immediate family of an enforced return to Bangladesh would be quite significant. His son was born in Australia and has no knowledge of that country and his wife has made it clear that, although she has family and support networks there, her interest is to see that her son remains in Australia to benefit from its education and health systems.

31. There are no obvious matters for consideration in relation to either the impact on victims or Australian business interests.

    CONCLUSION

32. Among the matters required to be considered by the Tribunal under Ministerial Direction 65 none seems to the Tribunal to weigh substantially against Mr Haque. It does not believe that there is an ongoing or potential threat from which the community needs protection. It accepts that the best interest of the minor child favour Mr Haque remaining in Australia and it believes that community expectations would be sympathetic to Mr Haque’s position. It finds that there are no international non-refoulement obligations to consider but that the impact on the family would be significant and weighs in favour of Mr Haque’s remaining.

33. The Tribunal is of the opinion that Mr Haque’s single criminal offence, although inexcusable and obviously premeditated, was a one-off event otherwise entirely out of character and driven by a degree of need rather than greed.

34. It agrees with the Sentencing Magistrate, who imposed a very light sentence on Mr Haque, that it can have a high degree of confidence that Mr Haque will not offend again and that the salutary lesson about the possible consequences of reoffending have been well and truly learned.

35. It notes that the offence took place more than five years ago and that since that time there has been no further evidence of any offending.

36. There is little or no guidance for the Tribunal in relation to the elapse of time before a person could be reconsidered for the issue of a visa.

37. In Fenn,[71] Deputy President Breen was concerned that five years might not have been enough for the applicant to demonstrate a restoration of character to the required level and in Sui [72] six years was thought insufficient. However in both these cases the offences were more rank than they are in relation to Mr Haque and here the Tribunal draws rather upon the finding in Assafiri that in relation to the elapse of time

    “How long that will be will depend on all the circumstances of the individual case.”[73]

    [71] Fenn and Minister for Immigration and Multicultural Affairs [2000] AATA 931 at [8].

    [72] Sui and Minister for Immigration and Citizenship [2008] AATA 1062 at [72].

    [73] Assafiri v Minister for Immigration and Border Protection [2014] AATA 35 at [67] per Senior Member Toohey.

38. The Tribunal recognises that Mr Haque is subject to a current good behaviour bond and that such arrangements are intended to have behaviour-modifying effects, nevertheless Mr Haque’s behaviour since 2103 has been in conformity with community norms and standards. On this basis he is entitled to some credit.

39. All of the evidence before the Tribunal is, in its opinion, persuasive of the conclusion that

    (a)Mr Haque does not fail the legislated character test, and

    (b)In the event that this conclusion is in error, it alternatively finds that there is another reason why the decision of the Minister should be set aside.

    DECISION

40. The decision of the Minister’s delegate, made on 3 August 2018, to refuse the issue of the visa applied for is set aside and remitted to the Minister for reconsideration with a direction that the visa applied for not be refused on character grounds under section 501 of the Migration Act.

I certify that the preceding 100 (one hundred and ) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

...........................[sgd]............................................

Associate

Dated: 21 November 2018

Date(s) of hearing:	12 and 13 November 2018
Solicitors for the Applicant:	Mr O Denes, Denes Lawyers
Solicitors for the Joined Party:	Mr J Hutton, Australian Government Solicitor