Harris and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered the case of Mr Liam Harris, a citizen of the United Kingdom, who applied for a Visitor (Tourist Stream) visa to enter Australia. The Minister's delegate had refused the visa on the grounds that Mr Harris did not pass the character test, specifically under section 501(6)(d)(i) of the *Migration Act 1958* (Cth), due to a past conviction for battery in 2012. The delegate assessed there to be a low risk that Mr Harris would engage in criminal conduct in Australia. The applicant for review was Mr Harris's brother, who resides in Australia.

The primary legal issues before the Tribunal were whether Mr Liam Harris satisfied the character test as required by section 501 of the *Migration Act*, and if he did not, whether the Tribunal should exercise its discretion to affirm the decision to refuse the visa. The delegate's refusal was based on the assessment that Mr Harris posed a risk of engaging in criminal conduct in Australia, citing his 2012 battery conviction. The delegate also considered various factors, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community.

The Tribunal found that while the delegate had assessed the risk of Mr Harris reoffending as low, there was no evidence presented to support the conclusion that he would engage in criminal conduct in Australia. The Tribunal noted that the battery conviction occurred in 2012, that Mr Harris had no subsequent criminal convictions, and that he had received a suspended sentence. The Tribunal also considered that Mr Harris was a family man with a young child and that the respondent's contentions were based solely on past conduct without demonstrating how a continued risk was reached. The Tribunal concluded that it needed to be satisfied that there was more than a minimal or remote chance of Mr Harris engaging in conduct specified in section 501(6)(d) of the Act.

On this basis, the Tribunal determined that Mr Liam Harris satisfied the character test. Consequently, it was not necessary to address the discretionary provisions under section 501(1) of the *Migration Act*. The Tribunal set aside the delegate's decision and remitted the matter for reconsideration with a direction that Mr Harris passes the character test.