Hazelhurst and Minister for Immigration and Border Protection (Migration) - [2017] AATA 2711

Hazelhurst and Minister for Immigration and Border Protection (Migration) [2017] AATA 2711 (19 December 2017)
Division:GENERAL DIVISION
File Number: 2017/5757
Re:Luke Hazelhurst
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:19 December 2017
Place:Brisbane

The decision under review is set aside and substituted such that the discretion in section 501(1) of the Migration Act 1958 (Cth) to refuse the Applicant’s visa should not be exercised.
........................[sgd]........................
Senior Member T. Tavoularis
MIGRATION – visa refusal – Applicant failed character test under s 501(6)(d)(i) – that if allowed to remain in Australia risk he would engage in criminal conduct – delegate subsequently exercised discretion to refuse visa under s 501(1) – whether Applicant fails character test in s 501(6) – Tribunal found Applicant fails character test under s 501(6)(c) - whether discretion to refuse Applicant’s visa should have been exercised – Considerations weigh in favour of Applicant being allowed into Australia – discretion to refuse should not be exercised – decision under review set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 43
Competition and Consumer Act 2010 (Cth), Schedule 2 – Australian Consumer Law
Migration Act 1958 (Cth), ss 499, 500, 501,
Cases
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411; [2004] FCA 774
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)
REASONS FOR DECISION
Senior Member T. Tavoularis
19 December 2017
INTRODUCTION

This is an application for review of the decision by a delegate of the Minister of Immigration and Border Protection (the “Minister” or “Respondent”) to refuse Luke John Hazelhurst (“the Applicant”) a Partner (Residence) (Class BS) visa, pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.
BACKGROUND
The Applicant is a 28 year old citizen of the United Kingdom. He was born and raised in England, where the majority of his family still reside. He first visited Australia on 19 August 1990 when he was less than a year old. He has since been in Australia about eight times.[1]
[1] See Exhibit 11, G documents, G3, pp 84 – 85.
The Applicant met his now wife, Laura Smith, in 2007 and they were married on

20 October 2011. Ms Smith was also born in the United Kingdom but was granted Australian citizenship by conferral on 10 February 2011.[2]
[2] Ibid, p 51.
On 25 October 2011, shortly after their wedding the couple arrived in Australia with the intention of starting a new life together. The Applicant entered the country on a Subclass 417 Working Holiday visa. The Applicant says he had previously spent time in Australia with his family on holidays and knew how beautiful a country Australia was. He and his wife had planned to spend some time living in Australia from a young age because she was a dual Australian citizen. The Applicant was also personally motivated to get away from family difficulties in the United Kingdom, such as his sister passing away while travelling in Greece and his brother’s issues with schizophrenia.[3]
[3] See Exhibit 11, G3, pp 98 – 99.
On 22 October 2012 the Applicant lodged an application for a Subclass 820 and 801 Partner visa,[4] which was sponsored by his wife, Laura. In that application, he did not disclose his UK assault conviction because it had been committed while he was a 13 year old juvenile and he did not think it would still appear in his police records.[5] Be that as it may, on 13 February 2014, he was granted the Subclass 820 Partner visa.
[4] Also known as: a Partner (Temporary) (Class UK) visa and a Partner (Residence) (Class BS) visa.
[5] See Exhibit 1, Applicant’s SFIC, at [23].
The Applicant returned to visit family in the UK on a number of occasions since relocating to Australia. Upon re-entry into Australia on 16 January 2015, the Applicant declared criminal convictions on his incoming passenger card. He declared that he had been convicted for “obtain property by deception” offences but again did not declare the abovementioned assault conviction from when he was a juvenile in 2003.
On 23 June 2015 the Applicant left Australia for approximately 15 months. The Applicant said in addition to visiting his family, there had been some illness issues in his wife’s family. So they (the Applicant and his wife) remained in the UK to care for them. The Applicant returned to Australia on 12 September 2016, but his wife remained in the UK to help care for her then pregnant sister. Upon re-entry at Melbourne Airport the Applicant failed to declare his criminal history. He was counselled in this regard and permitted to re-enter on his Subclass 820 Partner visa.
I will particularise the totality of the Applicant’s criminal and other conduct in Australia and the UK later in these reasons.
On 10 November 2016, the Respondent’s department wrote to the Applicant giving notice of their intention to consider refusal of his application for a Partner (Residence) (Class BS) visa under s 501(1) of the Act. The Department advised that his criminal history indicated that the Applicant may not pass the character test under s 501(6)(d)(i) of the Act.
On 2 April 2017, after seeking an extension of time from the Department to respond to that notice, the Applicant, via his representative, provided detailed submissions and a substantial amount of supporting evidence including: statutory declarations; traffic, police and court records; medical evidence; and photographs.[6] Further supporting evidence, including two reports from the psychologist – Dr Chris Day, was forwarded to the Department on 19 May 2017.[7]
[6] See Exhibit 11, G3, pp 93 – 210.
[7] Ibid, pp 211 – 258.
On 16 June 2017, a delegate of the Minister considered those submissions and made a decision to exercise the discretion in s 501(1) of the Act to refuse the Applicant’s Partner (Residence) (Class BS) visa. The delegate was not satisfied that the Applicant passed the character test, specifically under s 501(6)(d)(i) of the Act.
That decision was not served on the Applicant until 26 September 2017, over three months later. No reason was given by the Department for the delay. As best as I understood the material there was no change in the Applicant’s residential address or his email address or his mobile telephone number between June and September 2017. There is no recorded difficulty in the Respondent seeking to contact the Applicant or his representative at any stage of this process.
On that same day (26 September 2017) the Applicant chose to voluntarily depart Australia, accompanied by his wife. He is now in the United Kingdom awaiting the outcome of this review.
On the afternoon of 26 September 2017 the Applicant, via his representative, applied to this Tribunal for review of the delegate’s visa refusal decision.
ISSUES
The decision to refuse the Applicant’s visa was made on the ground that the Minister’s delegate was not satisfied that the Applicant passed the character test, having specific reference to subsection 501(6)(d)(i) of the Act. After taking into account the relevant considerations, the Minister’s delegate decided to exercise the discretion in subsection 501(1) of the Act to refuse to grant the Applicant a Partner (Residence) (Class BS) visa.
The issues for this Tribunal to consider are:
(i)whether the Applicant passes the character test as defined in s 501(6) of the Act; and
if he does not pass the character test,
(ii)whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the Applicant the visa.
ISSUE 1: CHARACTER TEST
The first issue I must consider is whether the Applicant passes (or fails) the character test as defined in s 501(6) of the Act.
The delegate of the Minister found that the Applicant did not pass the character test pursuant to subsection 501(6)(d)(i) of the Act, which 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;”
The Minister’s delegate considered there was a risk the Applicant would engage in criminal conduct if he were allowed to enter and remain in Australia, having regard to his criminal history.[8]
[8] See Exhibit 11, G2, p 14 at [3].
Upon review by this Tribunal the Respondent also sought, for the first time, to propound that the Applicant did not pass the character test having regard to s 501(6)(c) of the Act, which reads as follows:
“(c) having regard to either or both of the following:
(i) the person's past and present criminal conduct;
(ii) the person's past and present general conduct;
the person is not of good character;”
I have misgivings about the level of procedural fairness afforded to this Applicant in circumstances where s 501(6)(c) of the Act was not part of the delegate’s consideration and decision, nor was it cited in any of the previous warnings or other communications from the Respondent to the Applicant. It is unusual that upon review, a different provision of the character test would be raised and propounded.
Nevertheless, the Respondent’s representative pointed out that pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal conducts a de novo review and may exercise all the powers and discretions legislatively available to the delegate when making the correct or preferable decision. Further to that, it can be noted from the case management directions previously made in this matter, up to and including the hearing before me, that the Applicant had a right of reply to the Respondent’s Statement of Facts, Issues and Contentions, wherein the Respondent did raise this additional character issue.
I was initially of a mind to remit this matter to the Respondent for reconsideration in accordance with a recommendation from me that the delegate turn his or her mind to the application of s 501(6)(c) of the character test. I have decided against that course because I am mindful of the further cost and delay this would cause both parties. I will therefore proceed to consider both provisions.
Offending History and Further Conduct
The Applicant’s offending history and any further conduct that could be regarded as even remotely suggestive of the Tribunal being positively satisfied he does not pass the character test in terms of ss 501(6)(c) or (d) of the Act must be summarised. I propose to categorise and then scrutinise the totality of the conduct.
(a)Consumer Law type offences
(i) The bitumen driveway offence in 2011 – in or about 2011, the Applicant registered the business name “LJH Constructions”. It is clear the Applicant was the guiding mind and spirit of this business name. The evidence suggests that LJH Constructions entered into an unsolicited consumer agreement with Mr King for the construction of bitumen driveways at Mr King’s property. On 14 December 2012 Mr King paid the Applicant an initial instalment of $2,860 followed by a final instalment of $5,140 on 16 December 2012. The total paid by Mr King was $8,000.[9]
[9] See Exhibit 11, G3, p 140.
The essence of this matter is not one of any intentional conduct by the Applicant to deprive Mr King of his money and to otherwise not perform the agreed work. Rather, the conduct derives from the Applicant’s non-compliance with certain regulatory requirements governing the provision of necessary documentation by a building and construction entity to a consumer (or proposed consumer) of its services. Specifically, it was alleged that the Applicant, trading as LJH Constructions:
(i)failed to provide a notice that was able to be read by the consumer to terminate the agreement – in contravention of s 175(1) of the Australian Consumer Law 2010;[10] and
(ii)failed to give the consumer (before the agreement was entered into) information as to his right to terminate the agreement during the termination period and how the consumer could exercise that right – in contravention of s 173(1)(a) of the Australian Consumer Law 2010.
[10] See Schedule 2 – Australian Consumer Law in the Competition and Consumer Act 2010 (Cth), or Statute of Australian Law (Qld).
The Applicant was charged with these two offences on or about 20 November 2012.[11] The Applicant acknowledged and accepted both consumer law breaches in a duly written and worded Undertaking.[12] Both charges came before the Maroochydore Magistrates Court on 12 June 2013 which dealt with them as follows:
“Judgement or Order of the Court:
Charge 1-2
WITHDRAWN – Conviction not applicable
[11] See Exhibit 11, G documents, G3, p 144.
[12] Ibid pp 139 – 142.
[13] Ibid p 146.
Charges withdrawn”[13]
In accordance with the terms of the above mentioned written Undertaking, the Applicant acknowledged both breaches and paid full compensation in the sum of $8,000 to Mr King.[14]
[14] Ibid p 141, clauses 4.2 & 4.3, respectively.
(ii) Obtain Property by Deception Offences in 2013 – in January 2013 the Applicant was a part of a three man building team engaged by a consumer for the construction of a porch or veranda at a dwelling in Melbourne. His role was that of a labourer. Following completion of the work, the consumer complained that certain of the roofing sheet panels over the porch/veranda structure had not been properly affixed. The consumer alleged the work had not been completed to a sufficiently high enough standard to justify the amount charged to her for that work.
The questionable nature of the conduct giving rise to the offences relates to the inflation of what should have been a normal and regular fee for a job of that type. According to the Applicant, the correct figure for the work was between $7,000 and $8,000. This figure had been inflated for this particular consumer up to $18,000. Also according to the Applicant, this artificial inflation of the price was negotiated and implemented by the “team leader” of the three man building group of which the Applicant was the labourer. The consumer was caused to sign five blank personal cheques, four of which were later cashed in the combined sum of $18,000.[15]
[15] See Exhibit 10, Respondent’s SFIC, Attachment B.
The further concerning aspect of this episode was that the consumer was an 89 year old lady who was apparently suffering from a stage of Alzheimer’s disease. There was no evidence to demonstrate that the Applicant was aware of this condition or sought to exploit her on this basis.
The net outcome for the Applicant was that on 31 January 2013 he was arrested and charged with four counts of “obtain property by deception” and an additional charge of “attempt to obtain property by deception”. The Applicant appeared in the Melbourne Magistrates Court on 17 July 2013. For his role in the matter, the Applicant was convicted of the five counts and sentenced to a combined term of imprisonment of five months, which was wholly suspended for an operational period of 12 months. In addition, he was ordered to pay compensation to the consumer in the sum of $6,000.[16]
[16] See Exhibit 11, G3, pp 33 and 118 – 122.
The Applicant pleaded guilty to the offences at the earliest available opportunity and compensated the consumer in the ordered sum of $6,000 on the very day he was sentenced.[17]
[17] Ibid, p 100 at [19].
(iii) Roofing work – Glass House Mountains – 2014 – in or about October 2014 the Applicant commenced an industrial roof coating business called “PT Restorations” seeking work primarily in the Sunshine Coast region of south east Queensland. It is clear that at all material times, the Applicant was the guiding mind and spirit of PT Restorations.
On 15 October 2014, the Applicant entered into an unsolicited consumer agreement with

Mr Yourell to repaint the roof of Mr Yourell’s home in the Glass House Mountains. The quoted cost of the work was $1,600. The work involved the re-painting of the entire roof. The Applicant agreed to undertake the work immediately. The Applicant commenced the work and completed painting about half the roof. He says he then experienced a panic attack and left.[18] Later another tradesman performing work at Mr Yourell’s home noted that the western side of the roof had not been painted. Despite Mr Yourell’s requests of the Applicant to complete the work, the Applicant failed to do so. Nor did he arrange for any other tradesperson to complete the work Mr Yourell had paid for.
[18] See Exhibit 11, G3, p 104.
The essence of the conduct rightly complained of by Mr Yourell involved further breaches of the Australian Consumer Law. In particular, the four charges can be stated as follows:
(i)before the agreement was made with Mr Yourell, the Applicant failed to give him information as to his right to terminate the agreement during the termination period – in contravention of s 173(1) Australian Consumer Law 2010;
(ii)
the Applicant failed to give Mr Yourell the information prescribed by

s 173(1)(a) of the Australian Consumer Law 2010 (Qld) in writing – in contravention of s 173(1)(b) of the Australian Consumer Law 2010;
(iii)the Applicant did not, as soon as practicable and in any event before starting to negotiate, provide to Mr Yourell such information relating to the Applicant’s identity as prescribed by the applicable regulations – in contravention of s 171(1)(b)(iii) of the Australian Consumer Law 2010;
(iv)
the Applicant failed to supply all the services within the period specified by him at or before the time payment was accepted – in contravention of

s 158(7)(a) and (b)(i) of the Australian Consumer Law 2010.[19]
[19] See Exhibit 11, G3, pp 36 and 148.
The four charges came before the Caloundra Magistrates Court on 13 October 2015. The Applicant entered his own plea of guilty to each of the four charges. He was convicted of the four offences and fined the sum of $10,000 with a due date for payment of two months. There is no material before the Tribunal evidencing non-payment of the fine. On the same day, the Applicant refunded the $1,600 paid to him by Mr Yourell. This full refund was of the Applicant’s own accord, outside the terms of the sentenced penalty.[20]
[20] See Exhibit 11, G3, p 104 at [59].
(iv) Further consumer matter – Perth – proceedings were commenced in the District Court of Western Australia in which certain injunctions and pecuniary penalties were sought from the Applicant pursuant to Western Australian Fair Trading and Consumer Law legislation. This matter can be dealt with in relatively short compass because the Western Australia Commissioner for Consumer Protection consented to the dismissal of that proceeding. On 12 May 2017 it was resolved on commercial terms on a “no admissions” basis by the Applicant. In addition to the action being dismissed, the court made no order as to costs and vacated all outstanding costs orders, including reserved costs. It should be noted that lawyers acting in the proceeding were of the view that “the claim never had merit and had no prospects of success”.[21]
(b)Traffic / Driving History in Australia
[21] See Exhibit 11, G3, pp 236 – 237.
It is also appropriate to briefly summarise the Applicant’s traffic and driving history, whilst in Australia:
In Victoria -
·On 27 February 2012 – failed to wear seat belt – incurred three demerit points;
·On 18 April 2012 – exceeded speed limit by 10km/hr but less than 15km/hr – incurred three demerit points;
·On 15 May 2012 – exceeded speed limit by 15km/hr or more but less than 25 km/hr – incurred three demerit points;
·On 15 May 2012 – exceeded speed limit by less than 10 km/hr – incurred one demerit point;
·On 2 November 2012 - exceeded speed limit by 15km/hr or more but less than 25 km/hr – incurred three demerit points;
·On 3 November 2012 - exceeded speed limit by 15km/hr or more but less than 25 km/hr – incurred three demerit points;
·On 23 May 2013 - exceeded speed limit by 10km/hr but less than 15km/hr – incurred three demerit points;
·On 3 January 2014 – disobey traffic control signal - incurred three demerit points;
·On 28 April 2014 – turn or stop without signalling – incurred two demerit points.[22]
In Queensland –
·On 16 September 2014 – failed to wear seat belt – incurred three demerit points and fined $341;
·On 17 October 2014 – failed to wear seat belt - incurred three demerit points and fined $341;
·On 17 October 2014 – demerit point penalty imposed for two or more seatbelt offences within 12 months – incurred three demerit points;
·On 22 October 2014 – drive while using hand held mobile phone – incurred three demerit points and fined $341;[23]
·On 20 November 2014 – driving without a licence – fined $500 (conviction not recorded);
·On 5 May 2015 – driving without a licence – fined $500 (conviction not recorded).[24]
[22] See Exhibit 10, Attachment C – Vic Roads Traffic History.
[23] See Exhibit 10, Attachment D – Queensland Police Service – Traffic Record.
[24] See Exhibit 11, G3, pp 124 – 125.
Other offending

There is a residual group of offences that warrant discussion. They comprise the following:
(i) Theft of Sunglasses - on 30 September 2014 the Applicant entered a fuel station to purchase fuel. While waiting to pay for the fuel he apparently tried on a pair of sunglasses and left them perched on his head while paying for the fuel. He says he overlooked paying for the sunglasses (worth $26) and that he otherwise paid for the fuel. He was charged with unauthorised dealing with shop goods (having a maximum value of $150). He pleaded guilty and was fined $300 for this offence by the Maroochydore Magistrates Court on 8 May 2015.[25]
[25] See Exhibit 11, G3, pp 124 and 100 at [25]-[29].
(ii) Assault charge as a minor in the UK -
on 9 September 2003 while a juvenile aged 13 years, the Applicant was convicted in the United Kingdom of common assault. He was ordered to pay costs in the sum of £135 and compensation of £20. According to his evidence, the Applicant was bullied at school because of his then physical appearance. He said that during a school trip the constant bullying eventually got to him and he responded by becoming involved in a fight. Importantly, the Tribunal was told that by

5 April 2017, the Applicant’s conviction had been “stepped down” in accordance with the United Kingdom retention guidelines and step down model. The Applicant has no other criminal history in the United Kingdom.[26]
[26] See Exhibit 1, Applicant’s SFIC, p 2 at [7], and Exhibit 11, G3, pp 34 – 35.
(iii) Illegal carrying of waste in the UK – the Respondent sought to propound a certain matter involving the Applicant in the UK in or about May 2010. According to the Respondent’s representative, the information was gleaned by way of cursory Google search of the Applicant’s name, which, apparently, turned up this particular article in a regional English newspaper. The article refers to the Applicant being charged with illegally transporting controlled waste. The Doncaster Magistrates Court found him guilty of this offence and fined him £600, ordered him to pay costs of £250.51 and further imposed a £15 victim surcharge.[27]
[27] See Exhibit 10, Respondent’s SFIC, Attachment A. (Note: some of the article is missing from the printed excerpt provided but can be found online.)
In my view, the propounding of this offending takes the Respondent’s case nowhere. The Applicant explained at the hearing that the local enforcement authority had set up a “catchment” or detection zone in an area local to the Applicant. He said he was carrying four used tyres and two acid batteries as part of his going about his usual business. He explained that this enforcement procedure was part of a crackdown on the disposal of such waste pursuant to recently introduced environmental legislation. He further told the hearing that this detection zone remained in place for about one week after he was detected and that his vehicle was checked for a second time but that no further offence was proffered. There is no evidence before the Tribunal that any component of the fine or total penalty remains unpaid.
CHARACTER ASSESSMENT
I am mindful that, broadly speaking, the assessment of character methodology mandated by s 501(6)(c) is historically focused while that appearing in s 501(6)(d) is more oriented towards a predictive assessment of future propensity and risk. For reasons I will expand on below, I am of the view that this Applicant’s conduct runs against him when assessed on a retrospective basis but is not against him when assessing his future propensity to offend.
501(6)(c) - Whether the Applicant is “not of good character having regard to either his past or present criminal conduct or general conduct”?
While reading the material and hearing the evidence in this matter, I have been mindful of the actual sequence of the Applicant’s offending. Traffic/driving conduct aside, the sequence is important because something occurs at the beginning of his offending history in Australia that casts his subsequent conduct as, put at its highest, questionable.
His first offence in Australia occurred barely two months after he relocated here. It is the offending committed in the name of LJH Constructions involving the laying of bitumen driveways for Mr King. As part of the resolution of that matter, the Applicant signed an Undertaking, which specifically included an undertaking to:
“4.5 Ensure that any future business dealings are conducted in full compliance with the ACL(Q) or relevant industry specific legislation.”[28]
[28] See Exhibit 11, G3, p 141.
The Applicant sought to ameliorate the impact and effect of the Undertaking on his subsequent conduct. His evidence was to the effect that he did not read the document before signing it, that he was not represented in those proceedings, that he did not receive legal advice in relation to the Undertaking’s terms and that he did not think the Undertaking was very important because he provided full compensation to Mr King. Those contentions, to my mind, go nowhere for several reasons: (1) English is the Applicant’s first language and while he may not have been familiar with the specific legislation referred to in the document, the description of the factual circumstances of the offending together with the specific undertaking at clause 4.5 must have both been readily understandable for him; (2) while he was relatively young at the time he signed the Undertaking, I do not accept that youthful impetuousness and a desire to be quickly rid of the matter caused him to not concern himself with the gravity of what he was signing; and (3) it was plain that the sentencing Magistrate afforded him a considerable concession by formally withdrawing the charges in exchange for payment of full compensation and the signing of the Undertaking. I do not accept that this would not have been made clear to the Applicant at the time.
Put simply, the Undertaking was little more than (1) a statement of what the Applicant had done wrong, (2) the steps to be taken to put things right, and (3) a promise by the Applicant to abide by the law in his area of work. I therefore cannot accept that the Applicant did not understand as much.
As a consequence, I am of the view that the Applicant’s past conduct does not render him to be of good character. In particular, it is clear that the cumulative effect of his repeated offending has resulted in further and more severe offences of the same nature. Involving, as it did, the five counts for which he was sentenced in Melbourne in 2013 relating to the 89 year old consumer who was induced to sign five blank cheques and who was charged well in excess of double what the job was worth. It is also clear from the roofing work at the Glass House mountains which the Applicant failed to complete in 2014. To my mind, the significance of that offending is reflected in the quantum of the fine ordered by the sentencing Magistrate (being $10,000). It is not unreasonable to assume the sentencing Magistrate had regard to the offending in 2011 pursuant to which the Applicant had signed the abovementioned Undertaking.
I consider that this Applicant’s offending during the period 2011 until 2015 to constitute a pattern of continued blatant disregard or contempt for the law in Australia. It does little other than cast his conduct in a negative light and causes any assessment of his character during this period to be viewed as bad. During the hearing, the Applicant gave tepid and rather unconvincing excuses for the repeated nature of the conduct, blaming it upon youthful indiscretions and unfamiliarity with the laws of Australia.
The Respondent says this theme of a blatant disregard for the law is highlighted with further reference to the Applicant’s traffic history. Arguably, the nexus can be taken that far. There is a clear consistency and repetitiveness in his traffic offending such as to demonstrate that he historically thought it unimportant to learn and abide by Australian road rules. Youthful indiscretion and impetuousness is one thing, repeated failures to observe basic requirements when operating a motor vehicle is another.
Regard must be had to the comments of Justice Lee in Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 when assessing whether the Applicant is of “good character”. Having regard to the totality of his past criminal and general conduct I am view that the Applicant has not shown the enduring moral qualities sufficient to demonstrate soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens.[29] For reasons I will outline later, the Applicant has demonstrated good behaviour especially since receiving notice of the intention to cancel his visa. However, his conduct during the period 2011 to say, the end of 2015, outweighs that more recent good behaviour.
[29] Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411 at [34] per Lee J.
Accordingly, I find that having regard to both the Applicant’s past criminal and general conduct, pursuant to s 501(6)(c) of the Act, he is not of good character.
Having considered s 501(6)(c) of the Act, and making a finding that the Applicant fails the character test under that provision, it is unnecessary to apply and consider s 501(6)(d) of the Act.
ISSUE 2: DISCRETION TO REFUSE VISA
In circumstances where a visa Applicant does not pass the character test, the determinative issue then becomes whether the decision maker should exercise the discretion in s 501(1) of the Act to refuse the visa.
The Legislative Framework
In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65 (“the Direction”). The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 6.3, a decision maker: must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.”[30]
[30] Direction No. 65, paragraph 7(1)(a).
The Direction requires that any exercise of the discretion in s 501 is to be informed by the principles in paragraph 6.3. They are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, (particularly against vulnerable members of the community), should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
Paragraph 8(1) of the Direction provides that decision-maker must take into account the primary and other considerations relevant to the individual case.
The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction provides the three primary considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia; and
c)    Expectations of the Australian community.
The other considerations which must be taken into account for visa refusal matters are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct
The Tribunal must have regard to the protection of the Australian community from criminal activity or other serious conduct. Paragraph 11.1 of the Direction further provides that decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 11.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. I will briefly consider the relevant factors in turn.
A – Violent (and/or sexual) crimes are viewed seriously
The only crime of violence recorded against the Applicant arises some 15 years ago, when the Applicant was a 13 year old juvenile. The circumstances of the offence are surely not serious, involving as they did retaliation against school yard bullying arising from the Applicant being subjected to adolescent and puerile taunts about his then physical appearance. In my respectful view, it is a matter that should have remained within and been resolved by the responsible schooling authority.
There are no further offences involving the infliction of violence anywhere in the Applicant’s history since that time. For the sake of completeness, I note that there are no sexual crimes in his history.
B - Crimes committed against vulnerable members of the community are serious
The most telling offence in this category relates to the 2013 offences committed against the 89 year old consumer in Melbourne. In the Applicant’s favour is the evidence that the inflated price for the work was the brainchild of the “leader” of the three man group. There is no evidence to suggest the Applicant conceived of the idea to cause the lady to sign five blank cheques. Although the Respondent contends the victim was suffering from Alzheimer’s disease at the time of the offending, I am inclined to accept the Applicant’s evidence that this diagnosis was not known to him and his two colleagues at the time of the offence. Also in the Applicant’s favour is the promptness with which he recognised the wrongfulness of what had been done and his immediate repatriation of the duly ordered portion of restitution in the amount of $6,000 to the lady.
The Respondent also sought to ground a contention of the Applicant taking advantage of another elderly person via his 2014 roofing work in the Glass House Mountains. I do not accept that the Applicant deliberately targeted an elderly person with the intention of committing this offence upon such a person. I am prepared to accept the Applicant’s evidence which is to this effect:
“In about November 2014, one day after I finished giving a quote to an Italian farmer in the Glass House Mountains I stopped at a nearby house and introduced myself to the owner, Mr Yourell, I told Mr Yourell I had just given a quote up the road and asked if he wanted me to do his roof for him.
I do not remember how I introduced myself to Mr Yourell because I have a lot of different customers….”[31]
[31] See Exhibit 11, G3, p 103 at [47] – [48].
There is no suggestion that the Applicant was deliberately targeting elderly people. The age and demographic profile of his clientele seems to be random, just like any other tradesperson looking for work. There is no suggestion that the Italian farmer was an elderly person and the evidence of “a lot of different customers” would not have been put if the Applicant’s clientele were exclusively elderly.
The Applicant’s explanation of why he did not finish the work is due to a panic attack. In his statement, after being informed by Mr Yourell of the incomplete work, he says: “I assumed I had probably completed it because it would not make sense to prepare a whole roof and only coat half of it like Mr Yourell was saying. I told him I would come back and finish the job when I was available.”[32] It appears the Applicant did not complete this work. Put at its highest, the Applicant’s approach to his work at this time was less than efficient and professional, but this, in and of itself, does not prove a propensity or deliberateness to target elderly people.
[32] See Exhibit 11, G documents, G3, p 104 at [54].
C – Crimes committed in Immigration Detention etc
This factor is irrelevant to this decision.
D - Subjective finding that the Applicant fails the character test
I have made a finding that the Applicant fails the character test pursuant to s 501(6)(c) of the Act. Prima facie, in accordance with paragraph 11.1.1(1)(d) of the Direction, such a finding renders the Applicant’s conduct as “serious”. However, that assumption must be viewed in the context in which I made the finding that he is not of good character. I did not make that finding on the basis of one or two truly horrendous or serious criminal acts. I made that finding on the basis that his past general and criminal conduct demonstrated a then incapacity to differentiate between right and wrong and to otherwise resist a youthful impulsivity to please others and/or to rapidly achieve an outcome without diligently following the usual course towards that outcome. As I will discuss later in these reasons, another critical aspect of his conduct at this time can be explained by reference to his now diagnosed depression, anxiety and panic attacks, for which he has recently been receiving therapy/treatment.
E - Sentences imposed by the courts
As outlined above, the Applicant received a five month custodial term for his 2013 offences in Melbourne. That term was wholly suspended for an operational period of 12 months. The suspension of that custodial term was at no time invoked. It is notable that each person affected by his offending was compensated in full. It is also notable that there is no evidence of non-payment of fines and/or other monetary penalties that have been imposed on him.
For his 2014 (roofing) offences he received a sizeable fine but no further custodial term. It is reasonable to conclude that the large fine was imposed in circumstances where the sentencing magistrate must have been aware of the Undertaking signed by the Applicant on 24 May 2013.
F - Frequency of offending and any increasing seriousness
There is no denying the relative frequency of the Applicant’s offending conduct between 2011 and 2015. However, it can be seen that the Applicant has turned a corner since he was last before the court in 2015. Minor traffic/driving offences aside, he seems to have developed an insight into the factors that have apparently been behind his offending and also seems to be deriving the benefit of placing himself in the care of qualified professional people who can assist him to remediate the symptoms and factors that have caused him to offend in the past. The nature of his offending from 2011 to 2015 seems predicated on a lack of due process and professionalism in the procuring and completion of building type work, (as well as minor traffic offences). One cannot point to any notable escalation of the offending.
G - Cumulative effect of repeated offending

There have been three consumer-type offences for which the Applicant has come before the courts during the period 2011-2015. With possibly the exception of the fine imposed for the 2014 offending, there is no suggestion that the sentencing courts have taken into consideration the cumulative effect of his repeated offending when imposing a sentence.
H - Failure to disclose criminal history
As outlined in the background to these reasons, there are three relevant episodes of disclosure/non-disclosure. First, in his application for the subclass 820 and 801 partner visas, he did not disclose his UK conviction as a juvenile. His clear evidence was that as this offence was committed while a juvenile, he thought it had since been “stepped down” from his criminal history. Second, when entering Australia on 16 January 2015 he declared his offending arising from the 2013 Melbourne matter, including his five month suspended sentence, but not his prior offending. Third, when entering Australia again on 12 September 2016 he did not declare any of his convictions on his incoming passenger card. The Applicant’s explanation for that latest episode of non-disclosure was that: (1) he misconstrued the nature of the questions, assuming they all related to medical issues, (2) he is not good with paperwork and has always relied on his wife to attend to these types of items, but on this occasion she was not travelling with him, and (3) he was very tired at the end of a long haul flight. He was counselled by border security that he must declare his criminal history upon every re-entry into Australia, regardless of whether he held a valid visa at the time.
I - Offences in another country
As mentioned earlier, the Applicant was charged with assault in the UK as a juvenile, when he was 13 years old. He was also randomly apprehended for attempting to dispose of illegal waste in the UK and fined. Although these matters may be classified as offences in Australia, having regard to his age and the circumstances of the juvenile assault offence as well as the circumstances of the waste offence, surely neither of them can be regarded as serious.
Conclusion as to Nature and Seriousness of Conduct
It is not correct to say that the Applicant’s offending history from 2011 to 2015 is not at all serious. To an extent, it is, but I do not think it is so serious such as to cause a decision maker to have no option but to exercise the discretion to refuse the visa.
(b) The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct
Paragraph 11.1.2(3) of the Direction provides two of the factors the Tribunal must have regard to in determining the risk to the Australian community. Stated briefly they are:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, and the duration of the intended stay in Australia.
The Nature of Potential Future Harm
Criminal or other serious conduct inherently has a negative effect on individuals and the Australian community at large. The essential question for the Tribunal is what level or magnitude of harm would the Applicant cause to individuals in the Australian community if he continued offending? The magnitude of his past offending, does not lead one to a presumption that if he were to reoffend, the harm would be great.
It is clear that the Applicant’s most serious episode of offending comprises the Melbourne matters from 2013 for which he received a custodial term of five months which was wholly suspended for an operational period of 12 months. The maximum penalties applicable to this conduct are not inconsiderable: (1) for the offence of “obtain property by deception” the maximum custodial term is ten years imprisonment; and (2) for the offence of “attempting to obtain property” the maximum custodial term is five years imprisonment.[33]
[33] See Exhibit 1: Applicant’s SFIC, p 12 at [60], verified by reference to section 81 of Crimes Act 1958 (Vic).
It should be noted that his 2013 Melbourne offending did not result in a sentence requiring him to serve an actual term of imprisonment. None of the balance of his offending has resulted in the imposition of a custodial term. I therefore think the Applicant’s following contention is fairly made: having regard to the maximum possible sentences, it is reasonable to accept that the Queensland and Victorian Courts assessed his offending at the low end (for Victoria) and the very low end (for Queensland).[34]
[34] See Exhibit 1: Applicant’s SFIC, p12, para [61].
The Respondent, perhaps with some slight justification, asserts the Applicant “… has a history of taking advantage of people in their homes, including elderly people”.[35] As I have found earlier, I think any assertion of deliberately targeting and victimising elderly people is to characterise the Applicant’s conduct a little too harshly. While trading on his own account, it just so happened that the particular customers of his services were people of advancing years. There is nothing in the evidence to suggest the Applicant deliberately oriented his business activities towards the elderly. Instead, I think the evidence points to the inevitable randomness of any tradesperson’s clientele from time to time. The engagement of Mr Yourell, for example, was in no way a targeted exercise. The Applicant came across Mr Yourell as a result of completing a quote on a neighbouring property of an Italian farmer.[36]
[35] See Exhibit 10: Respondent’s SFIC, p 14 at [95].
[36] See Exhibit 11, G documents, G3, p 103 at [47].
I am prepared to accept that the Applicant’s role in the 2013 offending in Melbourne was something in which the Applicant played a small role. It is certainly not his finest hour while in this country. As against that, I am prepared to accept that he was not the instigator of the inflated price or the person who located that particular client.
The Applicant’s conduct in the operation of his building/construction/renovation business in this country thus far seems to be one of a lack of attention to detail and sheer sloppiness in (1) properly retaining a client by ensuring provision of all usual, necessary and legally required paperwork, and (2) being sufficiently fastidious in ensuring the work was completed to the general satisfaction of the customer. It must be accepted and understood that in business any client can complain about anything at any time. But this is different from the Applicant’s failure to provide necessary paperwork and ensure completion of the work. In my view, the Applicant can completely eliminate any risk of future harm to the community via his business activities provided these two requirements are met. I think he is now sufficiently experienced, savvy and responsible enough to do so were he allowed to return to this country and try and make some kind of contribution to it.
There is no escaping the reality that the Applicant has breached the Australian Consumer Law in his dealings with the Australian community. I have previously found that his reasons for such breaches are not convincing. Do these breaches mean there is a likelihood of repeated offending of the type that the Undertaking was designed to prevent? While there is a possibility of such further offending, I am of the view that this Applicant has now realised the adverse impact of a demonstrated failure to comply with the terms of an Undertaking. I am prepared to find that he is more likely than not to behave in such a manner as to comply with legislative requirements attaching to his chosen field of work.
If the Applicant were to re-offend, what would the level of harm be? I am of the view that if he were to re-offend the potential level of harm would be no more grave or serious than the nature of his previous offending.
The Likelihood of Re-offending, or Continuing to Engage in Other Serious Conduct
The primary guidance offered by the evidence on the specific question of any likelihood of re-offending or a continuation of any serious conduct derives from the report of the clinical psychologist, Dr Chris Day, dated 12 May 2017 and from her helpful oral evidence provided at the hearing.[37]
[37] See Exhibit 11, G3, pp 215 – 226.
The Applicant contends that he has undertaken psychological treatment with Dr Day and that this should be taken into account in the assessment of any propensity to re-offend. What can be stated from the outset is that he has not committed any offence since he began his treatment with Dr Day in November 2016. Indeed, he has not offended since the middle of 2015.
Dr Day’s abovementioned report of 12 May 2017 displays a detailed knowledge of both the circumstances and derivative symptoms of the Applicant (and his wife, Laura). With specific reference to the Applicant, Dr Day noted:
·the Applicant had become withdrawn and that “… His life had dwindled to work, miserable silences, brooding and irritable exchanges with his wife”;
·Dr Day noted that “…it was not in his culture to talk about emotional issues. He comes from the north of England and was taught to be stoical and just get on with life. He said he believed that only weak people needed help. It was highly embarrassing for him to think of himself as having a mental health problem or to be unable to cope with life’s problems. Having to attend psychological consultations significantly challenged his idea of what it meant to be masculine”;
·Dr Day then identified the two main themes affecting the Applicant’s psychological constitution:
oThe loss of the Applicant’s sister: “He became very emotional as he slowly started to relate the history of the death of his sister in 2010 and explained how close they had been. This was pain he had been holding on to and had been suppressing for six years. He was also consumed by guilt because he felt he had run away from his family. Luke felt unable to see his nieces because one of them looks very like his sister. Spending time at home reminded him of her. He was also unable to cope with the family discussing her. He left the room every time the conversation turned to her. Ultimately he left England completely to avoid this situation.”
oThe schizophrenia condition of his brother: “He also told me that his older brother had been a significant source of worry to the family during this period. His brother was diagnosed with schizophrenia in 2003 but was being ineffectually treated.” Dr Day further noted “While Luke’s parents were trying to cope with the death of their daughter, and had taken over the care of his very young nieces, his brother’s behaviour had become more strange and erratic. At the time they did not understand what was happening, and often phoned Luke to discuss the worrying behaviour. The period between symptom onset and the commencement of proper treatment was extremely stressful for the family. His brother was finally put on appropriate medication in 2014.”
·Dr Day noted that: “With every phone call from England Luke had become increasingly anxious. He was convinced that he would have to assume responsibility for his family as his parents aged. In his mind he was barely coping himself, but he believed that he and Laura would soon have to take care of ageing parents, a brother with a psychiatric disorder, and two young children.”
·Dr Day’s further observation was that the Applicant “… felt overwhelmed, unable to imagine how he would cope, and was subject to panic attacks every time he spoke to his parents and got more news about their hardships and dramas. He had no idea what to do or how to help them, but he felt pressured to provide answers and support for them. He internalized all his own worries so that he would not add to their burden. He was afraid to talk to Laura about it because he did not want her to regret marrying him. In the process, he became increasingly isolated.”[38]
[38] Ibid, pp 215 – 216.
Dr Day assessed the Applicant as suffering from severe mixed anxiety and depression for years, and noted that he also suffered from panic attacks. She then cited the Applicant’s symptoms, which can be summarised as follows:
·he completely failed to adjust to the death of his sister, he pushed his grief away and refused to consciously deal with the facts of her tragic death;
·his disposition has been one of sadness, brooding and withdrawal for the past five years;
·he has had panic attacks;
·he has had long periods where he has felt completely consumed by anxiety, reported blanking out, which was characterised by nausea, acute worry and an inability to think clearly;
·he has not been able to make any constructive plans for the future because of his beliefs about his responsibility towards his family;
·he has been very alone and afraid to admit he was not coping because he would add to the pressure everyone was already experiencing;
·he is extremely guilty about his inability to cope, and believes he should have been the rock his family needed him to be;
·he has been further isolated due to his culturally based refusal (thus far) to admit that he needed help;
·he has been consumed with guilt about his relationship with Laura, and putting their future in Australia in jeopardy;
·he broods about his guilty feelings and is otherwise remorseful about his past offending;
·his irritability has strained the marital relationship with Laura and resulted in many arguments between them;
·he was previously a light-hearted, happy-go-lucky person with many friends but struggles to believe he will ever be that person again.
In terms of assessment, Dr Day tested the Applicant for depression, generalised anxiety disorder and panic attacks. Her findings may be quoted as follows:
“Depression: 68% = in the severe range
Anxiety: 79% = in the severe range
Panic attacks: 9/13 symptoms = panic attack.”[39]
[39] Ibid, p 218.
In terms of an outcome, Dr Day made the following findings:
“Outcome
Over the past few months, Luke has been able to finally come to terms with the death of his sister. He still thinks about her every day and has a way to go before he can join up again with his family, particularly his nieces. However, he is willing to work on it and is hopeful about the future.
Luke’s brother has responded well to the medication. He is now in a stable relationship and coping well with independent living. The pressure of ongoing responsibility for his brother has diminished and Luke’s worry about this has receded.
Luke has begun to engage properly with friends and to think and plan for his future. He is trying to deal with his immigration issues and is finally able to give serious consideration to his future here in Australia rather than merely surviving from week to week.”[40]
[40] Ibid, pp 218 – 219.
In terms of a concluded summary and opinion, Dr Day opined:
“Summary and opinion
I believe Luke has finally emerged from years in a negative mental, emotional and psychological state. I have read the following documents and understand the offences he has committed:
…
In my opinion, all the offences he has committed were partly due to his youth and naivety, and more significantly because of his deep depression and subsequent inability to adequately process information or appreciate the consequences of his actions.”[41]
[41] Ibid, pp 219 and 221.
Dr Day also provides an opinion about certain of the Applicant’s specific instances of offending:
“In 2013 [the Melbourne offending] he chose to take what was on offer without questioning the situation. He arrived in a new country and needed to establish himself with a job and a place to live as fast as possible. He was offered a job he was easily able to do and took it.
…
The offences committed between September and November 2014 appear to be associated with severe co-morbid anxiety/depression and panic attacks. This is the period when Luke’s brother was very bad, the phone calls from home were very frequent and Luke’s parents were at a loss about what to do.”[42]
[42] Ibid, p 221.
Dr Day has observed that the Applicant:
“… is no longer trying to deal with all these issues alone. He has shared them with Laura and he has regular sessions with me. He has changed his attitude towards help-seeking and will not isolate himself again. He attributes most of his recovery to this. The clarity he has gained by being able to speak cannot be underestimated.
During our sessions, he has been able to make considerable progress towards adjusting to the death of his sister.
Much of the pressure from his family is now resolved as his brother has been properly diagnosed and treated. This has taken the pressure off Luke’s parents and they no longer phone him with overwhelming worries. In addition, Luke understands that there is nothing he can do to cure or take care of his brother. He has identified the limits of his responsibility and this has reduced his anxiety considerably.
As the symptoms of depression have receded, he is better able to process information and understand how he got into the situation. He is unlikely to let things get so far out of hand again because he understands that there is a huge advantage to help seeking and getting the support he needs.
Luke wants to make a future here. He does not identify himself as a person passing through looking for fast money. He identifies as a person wanting to start a stable business, buy a house and raise a family here in Australia...”[43]
[43] Ibid, p 222.
Dr Day then provides this opinion:
“In my opinion he is highly unlikely to re-offend. His offences were clustered within a relatively short period of time when he was in the negative mental state I have described above.”[44]
[44] Ibid, p 223.
Dr Day made the following recommendations:
“Luke and Laura are totally committed to their future in Australia. Neither has anything for them in England except family…
The idea of being forced to leave Australia[45] is deeply distressing to them. From a practical point of view, they would have to give up five years of settled life here and begin again in England with nothing.
From a psychological standpoint, being forced to leave could have a very detrimental effect on Luke…
Should they be forced to leave Australia, Luke is likely to relapse into hopelessness, helplessness, brooding, self-loathing and despair.
It is still early days with his recovery, and he is still learning how to apply newly learned techniques and strategies. I have real concerns about a relapse into more severe anxiety and depression if additional stress is placed on him by having his application refused.”[46]
[45] At the time of Dr Day’s report (May 2017), the Applicant was still in Australia.
[46] Ibid, p 223.
The Respondent contends that Dr Day’s assessment “has its weaknesses”.[47] Those asserted weaknesses apparently derive from the fact that the Applicant’s “apparent rehabilitation has lasted less than a year” and was only sought after he received the department’s notice of intention to consider refusal. I will make two observations in this regard: (1) I do not accept Dr Day’s observations, findings and recommendations to be “apparent” only. They are the findings of a professionally qualified expert. No contrarian report is put forward by the Respondent. (2) It is not correct to say that the Applicant has not previously contemplated seeking treatment. On 22 June 2015, the Applicant’s doctor, Dr Carl Rubis referred him to the clinical psychologist, Dr Colin Desforges.[48] The Applicant says that he did not make arrangements to see Dr Desforges because he and his wife returned to the UK the day after he saw Dr Rubis.[49] However, the absence of a further report from Dr Desforges or anyone else at this time should not in and of itself, render Dr Day’s findings as either “apparent” or unresolved.
[47] Exhibit 10, Respondent’s SFIC, p 14 at [96].
[48] See Exhibit 11, G3, p 172.
[49] See Exhibit 11, G3, p 104 at [58].

At the hearing, I discussed with Dr Day the factors that could give rise to a propensity in this Applicant to re-offend. As the written evidence will demonstrate, putting aside his documented lack of attention to detail in some business matters, it is noticeable from the Applicant’s demeanour that he seems a proud person who is keen to see certain things done in a particular or, indeed, perfect way and to otherwise not displease those around him. For example, I pointed out that the Applicant seems to have an interest in the repair and restoration of classic motor vehicles. I also noted that when he and his wife were married, the reception was held at the Birmingham Hyatt Hotel which is no doubt a suitably salubrious facility. It was clear that his offending involved elements of not wanting to displease those around him (eg the Melbourne 2013 offences) and to otherwise taking shortcuts to please a client or to achieve an outcome (eg the 2011 and 2014 offending).
I asked Dr Day to bear in mind and take into account the Applicant’s relative youth and impetuousness that characterised his offending during the period 2011 – 2015.
I then specifically asked Dr Day to assume a scenario that if the Applicant were allowed to return to Australia and reside here with his wife in circumstances where, as Dr Day has observed, they would be starting with “nothing”. I sought Dr Day’s opinion about the Applicant’s propensity or risk of re-offending in circumstances where, social pressure comes to bear and, for example, the friends of the Applicant and his wife may (1) live in a nicer home than they do, (2) drive a more luxurious motor vehicle than they do, and (3) where the wife/partner of one of their friends may wear more expensive clothes than the Applicant’s wife. My resulting specific question to Dr Day was if the Applicant were placed in such a situation of trying to match the lifestyle of those around him, what would then be his propensity or likelihood of re-offending?
Dr Day’s response was clear and unequivocal: she was of the genuine belief that the Applicant had (1) turned the corner in terms of the factors contributing to his offending behaviour; (2) that he had achieved genuine insight into the factors that had caused him to offend; and (3) that he now realised, for the first time, just exactly how high the stakes were in him moderating his conduct such as to never again place himself in the position which he now finds himself. Dr Day told the hearing that the circumstances of this application with its quite possible derivative effect of irretrievably affecting his marriage and his overall future, had scared the Applicant to the point where he is now more than abundantly aware that there is absolutely no room for his past offending in his future life.
I have had regard to the totality of the evidence, particularly the written and oral evidence of Dr Day, and the Applicant’s contention that “the risk that he would engage in criminal conduct if … allowed to return to Australia is no higher than that of the average person who does not have a criminal record.”[50] I am of the view that this Applicant’s likelihood of re-offending or risk of continuing to engage in other serious conduct is low.
[50] See Exhibit 1: Applicant’s SFIC, p 10 at [53].
The Applicant’s past convictions essentially comprise commercial matters which are dealt with through the criminal justice system plus relatively minor driving matters and one minor theft matter. I am not able to find that these matters involve violence or other deplorable conduct as contemplated by paragraph 6.3(3) of the Direction such that this Applicant should be denied the privilege of coming to Australia.
It is notable that the Respondent contends this Applicant presents only “… some risk of harm to the Australian community”.[51] Interestingly, the Respondent does not define a level of weight to be allocated to this Primary Consideration A but nevertheless concludes that it “weighs in favour of refusing the Visa.”
[51] See Exhibit 10, Respondent’s SFIC, p 14 at [97].
I am prepared to find that, on the totality of the material available to me, primary consideration A weighs slightly in favour of refusing the Applicant a visa.
Primary Consideration B: The Best Interests of Minor Children in Australia
It is common ground that there are no minor children of the Applicant in Australia that should be considered under paragraph 11.2 of the Direction that would be affected by the refusal of the Applicant’s visa.
Therefore, I attach no weight to this primary consideration.
Primary Consideration C: The Expectations of the Australian Community
I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 11.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Additionally, I must also consider whether the Australian community would expect that someone with this Applicant’s character concerns and history of offending should not be granted a visa. I must also have regard to the Government’s views in this respect.
A proper consideration of this Primary Consideration C requires an analysis of an applicant’s offending across a given factual matrix. One must not reach a hasty decision based on populist or prevailing views. Rather, one must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[52]
[52] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.
Put another way, would an informed and reasonable member of the Australian community consider that the Applicant no longer presents a risk (to the Australian community) - having regard to the totality of his offending - such that he should now be allowed to re-enter this country?
The application of this primary consideration[53] has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103]:
“102. … I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. I respectfully suggest that a consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
“... The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.” [my underlining]
[53] Note: in the decision of ETWK, the Tribunal was considering a revocation of visa cancellation request under s 501CA of the Act, and was specifically applying paragraph 13.3(1) of the Direction.
Having regard to the principles set out in paragraph 6.3 of the Direction, I am of the view that the Australian community, especially with reference to (1) this Applicant’s conduct and offending between 2011 and 2015 and (2) the insight and benefit he has received via his treatment with Dr Day:
(i)would expect him to obey Australian laws, and respect our important institutions, such as our law enforcement framework while he is in Australia; and
(ii)would consider that his historical breaches of the trust behind this expectation should not deny him the visa he seeks; and
(iii)would not endorse the refusal of his visa in the circumstances of his offending history whilst in this country and subsequent rehabilitation.
At the hearing, the Applicant spoke of being afforded the opportunity of resuming his life in Australia with his wife, an Australian citizen. Does he deserve that opportunity? This depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[54]
[54] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
Paragraph 6.3(5) of the Direction tells a decision-maker that the Australian community has an understandably low tolerance for any criminal or other serious conduct by visa holders who have been participating in, and contributing to, the Australian community for only a short period of time. Although he has experienced frequent travel to and from Australia throughout his life, the period of the Applicant’s offending can be isolated to the years 2011 - 2014/2015. It would not be true to say that his offending has precluded him from making any meaningful contribution to the Australian community. There are three instances of consumer conduct attracting operation of the legal system. One wonders about the comparative number of tasks or jobs completed by the Applicant that passed without incident.
His offending conduct does not reveal a trend of escalating seriousness nor has it resulted in him spending any time in actual custody. There are no unresolved issues with illicit substances and/or alcohol. The evidence convinces me that the symptoms and stressors motivating and influencing his psychological well-being have been and remains the subject of effectively administered therapy and demonstrable rehabilitation. Having regard to these factors, I am of the view that the Australian community would not have a lower tolerance of this Applicant’s past offending nor would it be convinced that he is incapable of participating in and positively contributing to the Australian community.
One can thus concur with the contention of the Applicant’s representative with reference to this Applicant’s conduct: the higher the risk of re-offending, the lower the tolerance of the community, while the lower the risk of re-offending, the higher tolerance of the community.
One takes the clear impression from his evidence that the Applicant acknowledges and accepts the nature and extent of his offending conduct in this country between 2011–2014/15. The further impression from his evidence is that the symptoms, stressors and youthful impetuousness largely contributing to that conduct have been recognised, ameliorated and are otherwise the subject of ongoing management by professionally qualified support. At the risk of repeating myself, his Australian citizen wife is now back in Australia with every intention of remaining here. The Applicant wants to join her in Australia to define a future for both of them and to thus make a meaningful contribution to the Australian community.
I do not think the Australian community would deny this Applicant “a second chance”, in light of my findings as to:
(i)him not representing a serious risk of harm to the Australian community were he to re-offend;
(ii)the low likelihood of him re-offending such that he presents no higher risk of re-offending than the average Australian; and
(iii)the comments of the learned Deputy President Forgie in ETWK regarding the more circumscribed expectations of the community.
I am therefore of the view that the informed and reasonable members of the Australian community would, on these facts, avoid a punitive application of s 501(1), and instead allow the Applicant to return to Australia.
Put another way, I am of the view that a majority of the Australian community would not support a decision to exercise the discretion to refuse this Applicant a Partner visa.
I therefore find that this primary consideration C weighs in favour of the Applicant such that his visa should not be refused.
Other Considerations
I turn now to the other considerations listed at paragraph 12 of the Direction. I have considered each of the four stipulated sub-paragraphs (a), (b), (c), and (d). [55]
[55] Direction No 65, paragraph 12(1).
With reference to other consideration (a) – International Non-refoulement obligations – non-refoulement obligations do not arise in this matter.
With reference to other consideration (b) – Impact on family members – paragraph 12.2(1) of the Direction provides that decision-makers should give consideration to the impact of a visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely. The Applicant has been in Australia on an intermittent basis since October 2011. His wife, Laura Smith, is a dual citizen of the United Kingdom and Australia. Ms Smith has made it clear she wishes to remain in and settle in Australia.
The Applicant contends his wife would be severely impacted if his visa were refused and that such a finding found favour with the Respondent’s delegate who accepted “….that Ms Smith would likely suffer emotional and practical hardship at the refusal of her husband’s visa application…”[56]
[56] Exhibit 11: G Documents, G2, p19.
The Respondent’s contention now is that Ms Smith’s evidence is either contradictory or otherwise unconvincing. While noting and apparently accepting that Ms Smith suffers from a number of medical conditions, the Respondent contends her evidence of stated reliance on the Applicant is inconsistent with her intention to return to Australia without the Applicant in December 2017.[57]
[57] See Exhibit 10, Respondent’s SFIC, p 16 at [110]. I note that the Applicant’s wife did return to Australia for the purpose of giving in-person evidence at the hearing before me.
To my mind, that contention can be squarely met with the findings of Dr Day who prepared a detailed report about Ms Smith’s condition. The report is dated 12 May 2017 and is part of the written material before the Tribunal.[58] At the time of her initial consultation with Ms Smith, Dr Day noted the following symptoms:
·she was acutely anxious and tearful;
·her speech was pressured and tangential;
·she was worried that many of her reactions to other people were paranoid;
·she experienced acute social anxiety and was refusing to go out to social events;
·she expressed utter dread and despair about Luke being refused residency;
·she could barely sit still or contain her cries for help in her distress;
·when Dr Day tried to comfort or ground Ms Smith, she was unable to follow what Dr Day said.[59]
[58] Exhibit 11: G Documents, G3, pp 228 – 234.
[59] Ibid, p 229.
Ms Smith gave evidence about her problematic relationship with her mother. It seems her mother has been a significant source of stress in her life and accounts for most of Ms Smith’s dread about having to return to England. The dread derives from the inevitable reliance the Applicant and Ms Smith will have to place on her parents were they compelled to both reside in England. The hearing heard evidence that Ms Smith’s mother has a particular horror of weight gain and has historically placed great pressure on Ms Smith to remain thin. This has resulted in an episode of anorexia when Ms Smith was about 18 years old.
Subsequent psychiatric opinion (from Dr Friedman) has concluded that Ms Smith’s primary symptom is one of severe anxiety rather than an eating disorder. The psychiatrist’s opinion was one of a “…generalised anxiety disorder with a borderline eating problem”.[60]
[60] Exhibit 8: Report of Dr Trevor Friedman, Consultant Psychiatrist, dated 31 October 2017.
Dr Friedman’s diagnosis is complemented by the opinion of Dr Day who conducted certain testing on Ms Smith and concluded as follows:
“Laura has a generalised anxiety disorder.
GAD test: 76.92% = in the severe range.”[61]
[61] See Exhibit 11, G3, p 230.
Dr Day is of the further view that: “the issues with her mother remain current. Her mother is extremely controlling and judgmental and has no inhibition about expressing her views and little appreciation of the effects of her statements on Laura [Ms Smith].”[62]
[62] Ibid.
Dr Day has also identified certain specific factors mitigating in favour of Ms Smith’s contention that her well-being is best served by remaining in Australia. She opines as follows:
“…There are several other factors contributing to her reluctance to return to England.
Laura has chronic pain from a neck problem and on her bad days she gets very depressed. Luke supports and encourages her. He helps her know that this will pass and encourages her to engage in other activities such as going for a walk or seeing friends. It is difficult to know how she would deal with this situation by herself. I would strongly advise Laura to accompany Luke if he must return to England.
Laura would like to stay in Australia to continue to have treatment from her Osteopath, Dr Karen Snowling.
Furthermore, Laura has consulted a gynaecologist (Dr Sharon Li at Sunnybank) because she has ovarian cysts. She has been advised to start trying for a baby sooner rather than later because it might take much longer for her to conceive. Ideally they would be in a better position financially and have a more stable living and job situation before starting a family. If they have to return to England to re-apply for a visa for Luke, they will have to delay trying for a baby until they can move back to Australia. This is counter to medical advice.
Laura has developed has developed some vision and goals about the future here, and was investigating more stable employment, consolidating a social circle, and living a more regular life with regards to sensible eating, exercise, developing her interests etc. However, she remains dependent on support from Luke financially and emotionally…”[63]
[63] Ibid, pp 231 – 232.
In terms of a recommended course for Ms Smith, Dr Day’s initial observation was that:
“Laura has recently regained her equilibrium and I am no longer concerned about her mental health.
However, I believe she her [sic] anxiety will escalate if the couple is made homeless. They are young and their finances are limited. They would be forced to rely on family to re-settle in the UK and this would be extremely counter-productive for Laura and very difficult for Luke.”[64]
[64] See Exhibit 11, G documents, G3, p 233.
Having regard to the totality of the medical evidence relating to Ms Smith, I consider that it outweighs any suggestion of inconsistency and/or lack of credibility as propounded by the Respondent. I am of the view that a refusal of the Applicant’s visa would significantly and adversely impact on the interests of Ms Smith who, as mentioned, is an Australian citizen with a right to remain here indefinitely.
In Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586 (“Wang”), the Tribunal considered evidence from a consultant psychiatrist about the psychiatric effects of a separation between the Applicant and his partner. In considering the application of this other consideration, the Tribunal noted as follows:
“31. The report of Dr Williams dated 11 June 2001 sets out the history and nature of the relationship between Mr Wang and Ms Bao, and suggests (at paragraph 3) that “if Mr Wang were removed from Australia this would be catastrophic for Ms Bao”, leaving her “at high risk of decompensating into severe depression and/or harming herself in some way”. Dr Williams also suggests (at paragraph 3) that the option of Ms Bao returning to the PRC with Mr Wang “would also be a disaster for her… She would face a bleak and hopeless future, and again would be at high risk of decompensation into depression.
32. It is contended that the strength of Dr Williams’ findings and opinion are such as to elevate these matters… to primary importance in the present case. The effect of a visa refusal in this case would be so catastrophic for the Australian citizen de facto spouse that this should be taken to outweigh the other considerations referred to in Direction No. 17[65]…”[66]
[65] The predecessor to Direction No. 65.
[66] Wang and Minister for Immigration and Multicultural Affairs [2001] AATA 586 at [31] – [32] per DP Block.

The Tribunal has had the benefit of similar evidence from Dr Day and Dr Friedman. I am similarly of the view that refusal of the Applicant’s visa would adversely affect the psychological state of Ms Smith.
Having regard to the totality of the abovementioned evidence I consider this other consideration (b) weighs heavily in favour of the Applicant being granted a partner visa.
With reference to other consideration (c) - Impact on victims – the Respondent contends that were the Applicant to re-offend in Australia, the impact on the Australian community “would be unacceptable”. That contention is, to my mind, difficult to sustain in circumstances where: (1) I have formed the view that the Applicant is at low risk of re-offending, and (2) there is significant evidence to demonstrate identification, treatment and rehabilitation of the symptoms originally giving rise to the offending conduct. There is the further issue of exactly who or what constitutes a “victim” for the purpose of this other consideration. As mentioned earlier, each of the asserted “victims” has been fully compensated. No-one is out of pocket and there are no residual effects of this Applicant’s previous conduct on those people.
With reference to other consideration (d) – Impact on Australian business interests – there are no identifiable impacts on Australian business interests arising from the circumstances of this case.
CONCLUSION
I have found that the Applicant does not pass the “character test” as defined in s 501(6) of the Act, pursuant to subsection 501(6)(c). In then considering whether to exercise the discretion afforded by s 501(1) of the Act to refuse the visa, I have had regard to the considerations referred to in Direction No. 65.
Primary Considerations A weighs slightly in favour of refusing the Applicant a visa, due to his historical offending, but is tempered by the lowered risk of future offending.
Primary Consideration B is of no weight to my consideration.
I am of the opinion that the Australian community would not expect his visa to be refused, and would give him a second chance, having regard to Primary Consideration C.
Most of the Other Considerations are not relevant, save and except the impact on family members were the visa to be refused. I have found that given the state of health of the Applicant’s wife (who has the right to remain here indefinitely as an Australian citizen), this factor weighs heavily in favour of the Applicant being able to remain in Australia.
Having regard to the totality of my above conclusions, I therefore find that the considerations outlined in the Direction favour a decision not to exercise the discretion to refuse this Applicant a Partner visa.
DECISION
In these circumstances, I set aside the decision under review and substitute it such that the discretion in s 501(1) of the Act to refuse the Applicant’s Partner visa on character grounds should not be exercised.
Subject to this Applicant meeting the remaining requirements for this visa, he should be allowed to return and remain in Australia.
I note that this decision does not render the Applicant immune from any future revocation of his visa and deportation by the Minister, were he to offend in Australia.

I certify that the preceding 151 (one hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

.........................[SGD]….........................
Associate
Dated: 19 December 2017

Date of hearing: 12 December 2017

Date final submissions received: 13 December 2017

Solicitors for the Applicant: D. Prince, Kinslor Prince Lawyers

Solicitors for the Respondent: T. Aviram, Clayton Utz

Date of hearing:	12 December 2017
Date final submissions received:	13 December 2017
Solicitors for the Applicant:	D. Prince, Kinslor Prince Lawyers
Solicitors for the Respondent:	T. Aviram, Clayton Utz