Hodson and Minister for Immigration and Border Protection (Migration)

Hodson and Minister for Immigration and Border Protection (Migration) [2017] AATA 254 (1 March 2017)
Division:GENERAL DIVISION
File Number: 2016/6780
Re:Shane Hodson
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member T. Tavoularis
Date:1 March 2017
Place:Brisbane

The decision under review is set aside. In substitution, the Tribunal considers the discretion in s 501(1) of the Migration Act 1958 (Cth) to refuse the Applicant’s Student (Temporary) (Class TU) visa on character grounds should not be exercised.
.......................[sgd]..............................
Senior Member T. Tavoularis
MIGRATION – Visa refusal – Applicant is a citizen of the United Kingdom – Applicant applied for a student visa – s 501 character test – Applicant has a history of offending in the UK – should discretion to refuse visa be exercised – whether primary considerations weigh against or in favour of exercising the discretion – discretion to refuse Applicant’s visa should not be exercised – decision under review is set aside and substituted - Applicant’s visa should be granted
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501
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
1 March 2017
INTRODUCTION

This is an application for review of the decision by a delegate of the Minister for Immigration and Border Protection (“the Minister”) to refuse Mr Shane Liam Hodson (“the Applicant”) a Student (Temporary) (Class TU) 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 of the Minister’s delegate.
BACKGROUND
The Applicant is a citizen of the United Kingdom (the “UK”). He is currently 35 years old. He first entered Australia on 13 April 2014 on an Electronic Travel Authority (Class UD) visa. Upon entry he declared his convictions on his incoming passenger card and was then interviewed by immigration officials. The Applicant was immigration cleared.
The Applicant temporarily departed Australia on 11 July 2014 but returned on 22 August 2014 and has remained here since that latter date.
On 15 October 2014 the Applicant lodged an application for a Student (Temporary) (Class TU) visa (“student visa”).
On 30 March 2015 a delegate of the Minister issued a Notice of Intention to Consider Refusal in relation to that visa.
The Minister asked the Applicant to provide a response in relation to his offences. The Applicant has a criminal history in the United Kingdom spanning 16 years. He commenced offending in 1997 and was cautioned for the offences of assault occasioning actual bodily harm and theft (shoplifting). In 1998 he was convicted of traffic offences including dangerous driving, driving without a licence and taking a vehicle without consent. He was fined, sentenced to a community service order and received driving disqualifications. Between 2000 and 2013 the Applicant was convicted of driving/traffic offences, drug offences, violent offences involving common assault and assault on a constable, and a false representation offence. He was sentenced to multiple periods of imprisonment ranging from two to five months, adding up to a total of 14 months.[1]
[1] See UK Police Certificate in Exhibit 3, G-documents, G7, pp 50-53.
The Applicant provided a response by email on 27 April 2015, including supporting documents and character references.
On 18 November 2016 a delegate of the Minister made a decision to refuse to grant the visa under s 501(1) of the Act. The Applicant was notified of this decision by hand delivered letter on 7 December 2016.
On 15 December 2016 the Applicant applied to this Tribunal for a review of the visa refusal decision.
ISSUES
The Minister’s decision to refuse the Applicant’s visa was made on the ground that the Applicant did not pass the character test due to s 501(6)(a) (and s 501(7)(c)) of the Act. In reviewing this decision I must consider and address both of the following issues:
(1)whether the Applicant passes the “Character Test” as defined in s 501(6) of the Act; and
(2)whether, having regard to the considerations in Ministerial Direction No. 65 (“the Direction”), the discretion in s 501(1) of the Act to refuse this Applicant’s visa should be exercised.
ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant does not seem to dispute the Minister’s contention that he does not pass the character test.[2] The representatives of both parties confirmed this at the hearing. For the sake of completeness of these reasons, I will briefly address the character issue here.
[2] See Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) at [18] & [45].
Applicant’s Criminal History
The Applicant understands he has been convicted of the offences which were listed in his United Kingdom Police Certificate dated 5 August 2014.[3] By way of summary those offences included but were not limited to:
·     Assault occasioning actual bodily harm; common assault; assault with intent to resist arrest; assault of a constable;
·     Make false representation to make gain for self or another or cause loss to other / expose other to risk;
·     3 counts of theft – shoplifting;
·     Dangerous driving; 5 counts of driving a vehicle uninsured; 2 counts of driving otherwise than in accordance with a licence, 3 counts of driving whilst disqualified; and other traffic offences
·     1 count of taking pedal cycle without authority; 2 counts of taking a vehicle without consent;
·     3 counts of possessing a controlled drug and 2 counts of possession of a class B drug;
[3] See Exhibit 3, G-Documents, G7, pp 50-53.
The Applicant was sentenced to the following terms of imprisonment in the UK:
·On 8 January 2004 –
oCommon assault – two months’ imprisonment;
oAssault with intent to resist arrest – two months’ imprisonment (concurrent);
oAssault a constable – two months’ imprisonment (concurrent);
·On 16 October 2013 –
oDriving whilst disqualified – three months’ imprisonment;
oMake false representation to make gain for self or another or cause loss to other/expose other to risk – five months’ imprisonment
The Applicant has not been convicted of any offences whilst in Australia.[4]
[4] See Australian National Police Certificate dated 10/12/2014 in Exhibit 3, G-documents, G8, p 54.
Section 501(6) of the Act provides a number of circumstances in which someone does not pass the “Character Test”. Most relevant here is s 501(6)(a), under which a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection (7). Section 501(7) specifies that for the purposes of the character test a person has a substantial criminal record if:
…..
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
….
The wording of that provision is clear: it relates to the sentence imposed by a court, not the amount of time a person has actually served.
It is initially necessary to review and consider the Applicant’s criminal history, the totality of any sentences for terms of imprisonment, and pattern of behaviour to ascertain whether he is not of good character as anticipated by s 501(6) of the Act.
As mentioned above, the Applicant has been sentenced to a total of 14 months imprisonment in the UK.
The Applicant therefore has a substantial criminal history within the meaning of

s 501(7)(d) and subsequently does not pass the character test pursuant to s 501(6)(a) of the Act.
I must therefore move to the next question: whether the discretion under s 501(1) of the Act should be exercised to refuse the Applicant’s visa.
ISSUE 2: SHOULD THE DISCRETION IN S 501(1) TO REFUSE THE APPLICANT’S VISA BE EXERCISED?
The Applicant relies on the relevant factors outlined in Ministerial Direction 65, particularly:[5]
(a) Strength and nature of ties to Australia;
(b) Rehabilitation; and
(c) Best interests of a child.
[5] See Exhibit 1, Applicant’s SFIC at [19].
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:
… 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.[6]
[6] 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. Briefly stated, they are summarised 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;
(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 should generally expect to be denied the privilege of coming to, or 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 future risk of similar conduct in the future is unacceptable;
(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 for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.
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.
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 other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:
(a)International non-refoulment 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 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 conduct, which includes the following:
a.The principle that violent and/or sexual crimes are viewed seriously;
b.The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c.…
d.…
e.The sentenced imposed by the courts for a crime or crimes;
f.The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g.The cumulative effect of repeated offending;
h.…
i.Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
It is difficult to escape the Minister’s contention as to the seriousness of the Applicant’s criminal offending.[7] He has committed violent offences ranging from common assault to assault with intent to resist arrest and, in perhaps his most direct challenge to lawful authority, assault on a constable. I therefore accept the contention that these crimes should be characterised as serious and that his sentences are an accurate reflection of the nature of his offending.
[7] See Exhibit 2, Respondent’s SFIC at [34]-[37].
Similarly, I accept the Minister’s contention of there being no sustainable element of mitigation simply because the Applicant’s assault charges (including that on the police constable) arose out of the one incident.
The sheer number of the Applicant’s appearances before courts in the UK also give weight to the presumption that his offending is serious. Further to that, when one has regard to his other non-assault derived offences, the presumption of the seriousness of his offending is inevitable. There are offences relating to drug possession, dishonesty, theft and multiple offences arising from the operation of a motor vehicle and the breach of the responsibility to hold a driver’s licence.
It is similarly difficult to cavil with the Minister’s contention that this Applicant has displayed a convincing disregard for the laws of the UK. Notably, however, his offending seems episodic occurring at specific stages of his life followed by a long period of non-offending.
His criminal history runs from 1997 to 2013 and all of it was committed in the UK. I make the following points about the totality of his criminal history. First, much, in fact nearly all, of his “early offending” (ie. 1997-2000) comprised minor level offending in the form of theft and relatively minor offences involving motor vehicles. At first blush, the standout offence from this early period, in terms of seriousness, could arguably be the dangerous driving offence for which he was dealt with in March 1998. In his evidence the Applicant explained that the concept of “dangerous driving” for which he was charged did not involve any wantonly dangerous or negligent operation of a motor vehicle, such that other road users were put at risk. According to the Applicant’s evidence, a charge of “dangerous driving” was proffered against him for driving a vehicle while uninsured and whilst unsupervised on a learner’s licence (or UK equivalent). The predominant mode of penalty for this “early offending” appears to be in the form of cautions, suspension of driving privileges, fines, community service and a probation order. No custodial terms were imposed.
Second, one should have regard to the “middle part” of his offending, which for all intents and purposes, covers the period 2003-2004. An incident on 14 September 2003 resulted in a number of charges that were all dealt with in January 2004. This offending is of a different character and different severity. It involves multiple counts of possession of unlawful drugs, three assault type offences, and offences relating to the destruction of property having a value of less than £5,000. The concerning aspect of this offending is its escalation from the nature of the offences committed during his early offending. In addition, this offending indicates behaviour involving direct interference with the rights of others and does not just derive from unilateral mistakes or mis-steps by the Applicant during his early offending period. Of particular note and severity is the offending around illegal substances. It did not escape my attention that in addition to the multiple charges of possession of cannabis and cannabis resin, the charge of possessing MDMA involved the Applicant being apprehended with something in the order of 19 tablets. At the hearing the Applicant gave evidence that his former wife was with him prior to and during his apprehension for this group of offences and that she was a regular drug user. The sentencing court obviously regarded the offences against the person as most severe because it imposed respective custodial terms of two months for each of the three assault offences. The Applicant was convicted for the drug offences and the drugs were forfeited but no additional custodial term for these offences were imposed over and above the terms imposed for the assault charges.
Third, following a hiatus of nine years, there is his “later offending” all of which arose from late December 2012 until April 2013. This offending comprised (1) a further two offences involving driving whilst disqualified and using a vehicle while uninsured, and (2) the charge of make false representation to make a gain for self. In his evidence, the Applicant sought to explain the driving/motor vehicle offences on the basis that upon arrival at his home, he apprehended his former wife in a compromising position with his “best mate”. He says that in a fit of pique, he mounted his motorcycle and aggressively rode away from the scene in disbelief and extreme angst. On any reasonable view, this cannot be regarded as a satisfactory explanation for these driving/motor vehicle offences. To my mind, the false representation charge is more significant. The Applicant sought to explain it on the basis of a cursory visit to an automatic teller machine (ATM) during which he found a bank card apparently situated on or about the pin pad of the ATM. He says he needed money and inserted the card into the ATM. He then says he randomly guessed the pin code for the bank code and was successful on the third attempt. He then says he wrongfully withdrew funds from the ATM belonging to the holder of the bank card. Again, no reasonably minded decision maker can accept this explanation as plausible. In the absence of further detail of this offence, such as, for example, details of whether the card was stolen and how much was unlawfully withdrawn, one is left only with the Applicant’s evidence which, at its highest, is less than convincing.
This “later” offending can only be viewed as serious. As against that, one should have regard to the Applicant’s evidence about the problematic nature of his relationship with his former wife. It seems she was both a domineering and selfish spouse who frequently placed unreasonable and stressful pressure on the Applicant to act as the family’s breadwinner. The Applicant gave evidence of the former wife’s aggressive, humiliating and belittling behaviour towards him. The essence of what he said is that her constant demand for him to financially perform as a spouse and parent distorted his sense of right and wrong and caused him to react adversely to her constant demand for him to meet her domestic requirements. He also gave evidence of behaviour by her that effectively impeded the development of any meaningful relationship with his three infant daughters since their separation. He told the hearing of his former wife’s significant reliance on narcotic substances and of her resulting incapacity to properly care for their children or earn an income. In particular, he told the hearing that in addition to earning an income, he was primarily responsible for the daily care and control of the children.
(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 of the Applicant reoffending or continuing to engage in other serious conduct. 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 reoffending; 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
The Minister helpfully acknowledges that the Applicant does not have a criminal record in Australia to date. However, a decision maker should also be mindful of the high threshold that is applied to assessment of any risk to the Australian community of the Applicant reoffending. As cited by President Mathews in Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]: “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending”.
The present assessment of this Applicant’s potential to cause future harm is not assisted by any evidence from an independent and authoritative expert on this issue. For the purposes of this case, a decision maker has reference to only two things: (1) the Applicant’s evidence of rehabilitation, and (2) the nature of criminal history under examination.
In terms of his rehabilitation, the Applicant told the hearing of the beneficial and life-changing elements he has derived from the domestic relationship with his current partner (hereinafter referred to as “Jodie”) and her two infant children. The Applicant gave clear and believable evidence of his intention to leave behind his UK lifestyle full of bad influences, including his former wife and friends who were drug users. This evidence was supported by evidence provided by his mother at the hearing. He seems intent on making a success of his life in Australia. He has re-partnered and seems very happy in that relationship. The eldest of his three biological daughters has recently travelled to Australia to visit him. There seems a likelihood she may return after finishing her schooling in the UK. He has completed a Certificate III in Carpentry and intends to get obtain additional qualifications that would allow him to act as a principal in a building/ construction/ renovation business. In the absence of independent evidence of rehabilitation, a decision maker is left with only the evidence of the Applicant and those additional witnesses who complimented his evidence.
In terms of the extent of his criminal history and its possible impact on the nature of future harm this Applicant may cause in the community, the question becomes one of trying to predict what kind of offence(s) he may commit (if any) were he allowed to remain in Australia. The deeper question, I think, is this: having regard to the evolution of his past pattern of offending, can it be reasonably said that he will commit offences that could be regarded as more severe than those on his UK criminal history? While I note the respective contentions on the point, I am of the view that any re-offending by this Applicant would be in line with the nature and extent to that which preceded him in the UK. To date, this Applicant has not been convicted of any offence since his arrival in Australia in 2014. I note there is a singular and minor drug possession charge from December 2016 which is presently before the courts and yet to be finalised. Although not found guilty of anything at the date of my writing these reasons, the nature of the offending in December 2016 (if that is what it is found to be) is of no greater magnitude than his previous history. I would also note that at the hearing the Minister’s representative conceded that the circumstances giving rise to the December 2016 charge were of minor severity in the overall context of his offending.
I therefore conclude that the nature of any potential future harm attributable to this Applicant is, at its highest, on par with the nature and extent of his previous offending.
The Likelihood of Reoffending, or Continuing to Engage in Other Serious Conduct
At the hearing, I invited the Minister’s representative to, as it were, “set the bar” for the Minister’s assessment of the likelihood of this Applicant re-offending. I proposed a three level approach: low, medium, and high risk of re-offending/ continuing to engage in other serious conduct. The response I received was “at a point between low and medium”.
I accept the Applicant’s contention that he is not likely to continue to offend or to otherwise engage in serious conduct, because, post his turbulent marriage in the UK, he has changed. I also accept that he has sought to re-define himself with his life and work in Australia and that the likelihood of his re-offending is therefore low.
This apparent transformation was a consistent theme of the Applicant’s evidence, that of Jodie, that of his mother and that of his prospective father-in-law. The totality of this evidence presented to my mind an image of an Applicant who has sought to get on with his life but for reasons beyond his management and control, had previously been prevented from doing so.
These previous reasons commence as early as his childhood. His biological father, according to the Applicant’s evidence, was not loyal to the Applicant’s mother nor a stable father figure nor was he a positive role model for the Applicant. The Applicant told the hearing of his distress as a child in witnessing his mother and their family being largely abandoned by his biological father. The Applicant told the hearing that things only began to improve when his mother met his step-father. Only then says the Applicant did he feel that he had two genuine parents in the world. The Applicant took on his step-father’s surname and called him “dad”. The step-father and the Applicant’s mother migrated to Australia with his younger brother in or around 2006. At the time, he was in a long term relationship with his now former wife and they had their first child, so the Applicant chose to remain in the UK with his partner and child.
It is therefore notable that upon the step-father becoming dangerously ill with a terminal illness in 2014, the Applicant did not hesitate to immediately travel to Australia for the purpose of both caring for his step-father and providing support to his mother. It is also notable that consequent upon separating from his very unhappy and problematic marriage in the UK, which initially resulted in his estrangement from his biological children, the remainder of the Applicant’s immediate family resided in Australia (including his mother, brother and step-father). Following the passing of his step-father in 2014, the Applicant remained in Australia to support his mother and brother for as long was allowable under his then three month tourist visa. He then returned UK for a short period. He made enquiries about making a life for himself in Australia, so he could be close to his mother and brother. Within this intention in mind he again returned to Australia in August 2014 and applied for a student visa on 15 October 2014.
Since returning to Australia the Applicant has not remained idle. He has completed studies in a Certificate III of Carpentry and has intentions of further study to facilitate his qualification for a Building/Development licence. He clearly told the Tribunal of his intention to work in the building and construction industry and to one day operate his own building and construction company. He has, indeed, put his money where his mouth is, because he has incurred and paid $22,000 in education expenses while in Australia. As an ‘international student’, given his visa status, there will be significant further cost for him to obtain the necessary education and desired building qualifications. He was clear in his oral evidence about his intention to obtain these additional qualifications.
Culturally, there is nothing in the evidence to mitigate against this Applicant fitting into or otherwise becoming an active and contributory part of the fabric of Australian society. His unhappy past in the UK causes him to feel happy and grateful for being in this country and the opportunity it presents. I am satisfied that he will do everything he can to not jeopardise an opportunity to settle and remain in Australia.
In April 2016, the Applicant met and fell in love with Jodie. The relationship has blossomed and seems to be growing ever stronger. Of particular note is the Applicant’s strong and nurturing bond with Jodie’s two infant children. I will expand on this in the discussion around Primary Consideration B. Evidence given orally at the hearing by various witnesses suggests they have become a close family unit. Suffice it to say that the relationship with Jodie is something that can be regarded as a fundamental element of any future the Applicant may have in this country. Both the Applicant and Jodie unreservedly spoke of getting married.
There are, therefore, identifiable mitigating factors against the risk of this Applicant reoffending, such as: his level of education, his prospects of employment, the support of his family and the very strong and loving relationship he has forged with Jodie and her two infant children. I also consider that much of the Applicant’s previous offending in the UK can be principally attributed to his largely dysfunctional relationship with his former wife and their recourse to substances.
Taking all of these factors into account, I think this Applicant is in the low range of any general risk of reoffending. I also consider there is a low risk of him causing imminent harm to others. This Applicant could not be considered to be of “no risk” of reoffending, however I find he is of no greater risk than anyone else in the community.
Primary Consideration B: The Best Interests of Minor Children in Australia
The evidence presented suggests that the Applicant’s three biological children ordinarily reside with their mother in the UK. During the oral evidence of one witness it was suggested the eldest biological daughter had been to visit the Applicant in recent times. However, this point was not propounded by the Applicant himself.
As alluded to above, the Applicant is in a relationship and living with an Australian citizen, Jodie. The relationship is apparently a happy one. The Applicant and Jodie are engaged and they plan to marry soon.
The relationship can only be viewed as both serious and happy. There is nothing to suggest it is something contrived for the purposes of this Application or for any other ulterior purpose. The families have met each other and are positively interacting. This was born out by the oral evidence of Jodie’s father (hereinafter referred to as “Col”) and Mrs Hodson (the Applicant’s mother) at the hearing. Both of these parents spoke positively of the relationship between the Applicant and Jodie. There was a consistency in their evidence that the couple were good for each other and that each had exercised a positive effect on the other.
For reasons I will mention shortly, it transpires that the Applicant’s effect on Jodie’s eldest child (an 11 year old daughter) is to be regarded as profound. Mention should now be made of Jodie’s previous marriage which yielded her two biological children, the aforementioned 11 year old daughter and a son now aged nine. In its later stages, the marriage was not a happy one and Jodie formed the view to end it. There are defined parenting arrangements in place for the two infant children.
Since meeting Jodie in April 2016 and soon after cohabiting with her, the Applicant has had regular interaction with her two children. By all accounts, he has made a significant and positive contribution to the wellbeing of Jodie and her two infant children. The evidence was to the effect that while the children are in Jodie’s care, the Applicant has assumed the role of a pseudo-father to them. Jodie gave evidence at the hearing that the Applicant has engaged with the children as if they were his own. Despite the Applicant not being their biological father, Jodie was of the view that it was more significant how, where and by whom her children were raised that mattered. She said the daily relationship between her and the Applicant was how a normal family should function with no yelling or screaming as had occurred in their previous marriages. She spoke of a roster prepared by her and the Applicant that listed what activities each member of the family had on that week, where they were going, and who was responsible for picking up the children from school. Her evidence indicated that whilst her children were in her care, the Applicant played a significant parenting role in their lives.
To my mind, a very significant issue raised at the hearing was this Applicant’s apparently positive influence on the wellbeing of Jodie’s daughter. Evidence of this was adduced from the Applicant, Jodie and Col, in both written and oral evidence at the hearing. Each of these witnesses told the story about how prior to meeting the Applicant, Jodie’s daughter had significant mental health issues which were evidenced by her regular “meltdowns”, particularly when she was due to commence spending time with her biological father. The daughter’s conduct mainly involved difficulties with regulating her emotions and deliberately acting out certain behaviours against a background of acrimonious parental separation. Since meeting and developing a relationship with the Applicant, each witness noticed a change in the daughter’s disposition, the calming effect the Applicant’s presence had on her and the significant decline in “meltdown” type behaviour. Significantly, Jodie spoke of a re-emergence of this “meltdown” behaviour since the Applicant has been in detention pending the outcome of this hearing.
Jodie gave evidence of how her daughter had previously had these “meltdowns” which on occasion had resulted in police or ambulance services being called. She suggested her daughter struggled to regulate her emotions and often went into a zombie-like state where she did not realise what she had done. There was concerning evidence from Jodie about aggressive and destructive behaviour by the daughter whilst a passenger in the car she was driving. There was further concerning evidence from Jodie about attacks upon her by the daughter involving the use of potentially quite dangerous implements with the potential of causing genuine harm to another person. Jodie spoke of her growing reliance on the Applicant’s capacity to calm any such situations involving her daughter and to otherwise act as a protective element for both herself and her nine year old son.
When asked what he brought to the family that allowed Jodie’s daughter to be calmed, the Applicant responded that much like their mother, he was warm and caring. When the daughter was having a meltdown, he would hold her to his chest because he had read that the sound of his heartbeat could help calm her. He thought that he brought a sense of safety to the daughter’s life that did not exist before. The Applicant spoke of having a good relationship with the children’s biological father and they could freely discuss issues. He spoke of acting as an intermediary with their biological father who had given him permission to discipline the children if needed. The Applicant appreciated that he had no legal parental responsibility for Jodie’s children but in terms of their day-to-day living and his duties with the children he professed to being loving but firm. He would set them tasks such as washing up and would take them to school and pick them up.
The overwhelming or predominant assessment and description of this Applicant is one of a loving, caring and giving individual. I think it is more likely than not that his former wife in the UK took advantage of this aspect of his character and personality with unfortunately adverse consequences for the Applicant. Conversely, the evidence, to my mind, convincingly pointed to this aspect of the Applicant’s character and personality being significantly important and of measurable benefit for the new family unit he has established with Jodie. He seems to represent the neutral and positive influence of a “Switzerland” in a family unit that has otherwise been at war before his arrival. The Applicant seems to present a calm and soothing environment for the children in an otherwise intense period leading up to changeovers when they are due to visit their biological father. The Applicant represents a healthy and viable alternative to resolving the daughter’s issues which would only have otherwise been capable of resolution/treatment by recourse to prescribed medication and seemingly endless interventions by psychological and/or psychiatric experts and, in urgent circumstances, the police and ambulance services.
When asked how Jodie would cope with her daughter if the Applicant had to relocate back to the UK, she said that, like she had in the past, she would have to deal with each “meltdown” as it arose. However, as any parent would, she preferred her daughter be calm and happy. When questioned about a possible relocation by her and the children to live with the Applicant in the UK, she said the biological father of her children had strenuously opposed any suggestion of a relocation of the children away from Australia. She said the biological father simply “would not allow it to happen”.
Evidence given at the hearing seemed to suggest the daughter’s meltdowns had re-emerged since the Applicant had been detained by the Minister. The daughter seems to be exporting this behaviour towards third parties. The Applicant and Jodie gave evidence of an episode involving the daughter becoming upset in the car whilst at school. Jodie called the Applicant upset because she could not cope. Her daughter was hurting her son, refused to get out of the car, and when the headmaster attempted to intervene she began kicking out at him/her as well.
One should not forget to mention the Applicant’s positive influence on Jodie’s son as well. The son has the more shy and retiring personality. He tends to keep his feelings “bottled up” inside. But this does not mean that he feels pain and insult any less than the daughter. The evidence was clear: there is no doubt that this Applicant similarly exercises a caring and nurturing influence on Jodie’s son. It was not missed by me when I heard evidence that the children’s biological father, despite his deep and serious differences with Jodie, was nevertheless accepting of the Applicant’s role as a contributing intermediary in the daily care and control of his children.
In his evidence, Col (Jodie’s father), also spoke of the very real difficulties that arose in his granddaughter when it was time for her to spend time with her biological father. Col told the hearing that since the Applicant has been in detention he has had to act as somewhat of an intermediary to assist with control of the re-emergence of his granddaughter’s meltdowns when she has to visit her biological father. Col’s evidence was significant when he spoke of the comparative parenting styles of the children’s biological father and that of the Applicant. Col said the biological father was more regulated and expectant in his approach to parenting the children, while the Applicant was more conciliatory and willing to engage with the children. Col mentioned these examples:
1)his granddaughter originally adored playing tennis but, at the unrealistic insistence of her biological father, became overexposed to this activity when he compelled her to participate in it four times a week. As a result, the daughter has now lost interest in tennis;
2)his grandson was allocated the position of goalkeeper in his local futsal (indoor football) team. The grandson experienced difficulty in playing that position and received no assistance or guidance from his biological father. The Applicant became actively involved in encouraging the grandson to enjoy the position of goalkeeper by building him temporary goal posts in the backyard and practicing with him so that his grandson could become a better goalkeeper.

I also think it is very important to bear in mind the respective ages of the children relative to the symptoms they are currently displaying. I do not profess any medical or psychiatric expertise. However, the evidence left me with a serious apprehension that if left unbridled and unregulated by the obviously vital intervention of the Applicant, the daughter’s behaviour can only escalate into yet more aggressive and defiant conduct such that she will, in all likelihood, become further dismissive of authority and any reasonable request of her to do any responsible thing. Likewise with the son, I have a similar concern that if the positive influence of the Applicant was removed from his life, his shy, retiring and cowering demeanour would be amplified into his adolescent years such that he would only withdraw further into himself and become solitary and otherwise avoid meaningful social interaction.
I made it clear to the parties’ representatives that the hearing would have been better served by having an expert psychological or psychiatric opinion before it so that we had some measure of clinical explanation and analysis of the symptoms of both of the children and the level of impact made by the Applicant as a result of his introduction to Jodie’s family unit. In making this comment I also made it clear to the parties that I was fully appreciative of the often prohibitive cost and delay (bearing in mind time was short because this was an expedited review), in obtaining such reports. The further purpose of this comment was to assure both representatives that I was not purporting to in any way criticise the conduct and presentation of their respective cases. On the contrary and as I told them at the hearing, both sides, in my respectful view, represented their cases in an exemplary manner.
The Applicant did tender a short form report from a Consultant Psychiatrist, namely,

Dr Paranee Siva.[8] Dr Siva has been seeing Jodie and her daughter since May 2016. He makes this finding: “[the daughter] struggles with regulating emotions and acting out behaviours on a background of acrimonious parental separation.” A more lengthy and broader discussion of this opinion would have been helpful but this is all that can be gleaned from Dr Siva’s report.
[8] See Exhibit 17.
Dr Siva then, with specific reference to the positive role of the Applicant, goes on to say:
“Her [the daughter] mother’s partner Shane has been part of the family since last year. The family have reported [the daughter] has improved in her behaviour over the time mum and Shane have been together and have identified the positive impact of Shane’s parenting on [the daughter]. The family have significant concerns about [the daughter’s] mental health in the current circumstances if the family unit is broken up.” [my underlining]
As I told the parties at the hearing, this is Dr Siva confirming what has been told to him by “the family”. I have no difficulty in accepting that Dr Siva believes what has been told to him by “the family” but it would have been more helpful if he had made this observation and backed it up with commentary about its positive therapeutic effects from a clinical point of view.
I also note that the Minister’s representative did not cavil with: (1) the totality of the lay evidence relating to the behavioural symptoms of both Jodie’s children, and (2) the positive and beneficial effect of the Applicant on Jodie’s children. This constructive approach by the Minister’s representative is consistent with its acceptance by this Tribunal as a model litigant. In this regard I would find it extraordinary if each of the Applicant, Jodie, Col and Mrs Hodson, were each giving concocted false evidence in concert about these two issues. I discount that possibility.
The Applicant has three biological children back in the UK. However, when questioned about his relationship with them, the Applicant professed that his former wife had precluded him from having a good relationship with his children. On many occasions she had not allowed him to phone, skype, otherwise contact or see the children. In fact the last time he had attempted to visit them in or around 2014 his former wife had attacked him in the streets. But it is likely that his children in the UK, certainly as they become older, may very well gravitate towards the Applicant. As mentioned above, his eldest daughter has recently travelled to Australia to visit her father and his new family. The evidence given at the hearing suggested she was accepting and welcoming of her father’s new family. It is, I think, significant that the eldest daughter resided with the Applicant and his new family for the duration of her stay in Australia. Any increase in or resumption of the relationship between the Applicant and any one or all of his biological children can only be of constructive benefit to the life he wants to establish for himself in this country.
Prior to the hearing, the Minister contended in written submissions that while “the Applicant appears to play a role in the lives of [the children] … the Applicant appears to have only been in a relationship with Jodie for a period of approximately 12 months.” In those written submissions the Minister also contended that “whilst the relationship between the Applicant and the partner’s children may bear the hallmarks of a parental relationship, less weight should be afforded to the fact that the Applicant is not the biological father of the children and has only been a father figure to them for a short period”.[9]
[9] See Exhibit 2, Respondent’s SFIC at [51]-[52].
That position was tempered by the Minister’s representative in his closing submissions at the hearing where he noted that the hearing had yielded more evidence in relation to this Primary Consideration than was previously available to the Minister’s delegate who made the decision under review. He acknowledged that the best interests of a child are best served by that child remaining with their parents. He further acknowledged that during the hearing, the Tribunal, for the first time had received detailed evidence of the positive relationship the Applicant had with Jodie’s two children. He thus accepted that the Applicant remaining in Australia was in the best interests of those children, but qualified that concession on the basis that the Applicant was not their biological father. Finally, it was accepted that the Minister would probably now regard this consideration as weighing in the Applicant’s favour.
Despite this Applicant not having any biological children of his own in Australia, the evidence I heard at the hearing convinces me of the significantly beneficial impact of this Applicant on Jodie’s two children. I therefore find that the best interests of at least two minor children in Australia are best served by this Applicant remaining in Australia.
Primary Consideration C: The Expectations of the Australian Community
The Tribunal is acutely aware that Australia has a low tolerance of any criminal conduct by visa applicants or those who have participated in the Australian community for only a short period of time. The Tribunal appreciates the principle enunciated in paragraph 6.3(6) of the Direction as it relates to “there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia”.
It is right that the Minister should hold reasonable concerns that a person with the type of history this Applicant has should not hold a visa. That contention is fairly made but, in my respectful view, must be considered in the light of the totality of both this Applicant’s offending and how he has made his way in the world.
Firstly, the Applicant’s criminal history in the UK is one that coincides with his failed marital relationship. I have discussed the categorisation and circumstantial aspects of his offending earlier in these reasons. Although not in any way excusable, the totality of his history is not extraordinary, novel or remarkable and should be considered by way of contrast to the way he has applied himself while living in Australia.
Secondly, having regard to the element of community expectations of an Applicant’s conduct in the grant of any visa, this Applicant’s personal circumstances, both before and after his marriage in the UK, warrant some discussion. As mentioned earlier in these reasons, the confluence of (1) his offending in the UK together with (2) his unhappy and unhealthy marriage and (3) the quality of his circle of friends in the UK, is, in my view, something that mitigates against the risk of his future offending. Since arriving in this country, it is, I think, fair and reasonable to say that he has turned his life around.
In the relatively short time he has been here [ie. since the latter part of 2014 – until he was placed in detention in December 2016 – a period of 2 years] he has achieved more and progressed his life further than could reasonably be expected of a new arrival, and most certainly, when compared to the life he lead in the UK. While his conduct in the UK might not reasonably meet the expectations of the Australian community, I would venture to suggest that the way he has sought to establish himself in this country most likely would.
The Applicant came here in 2014 for no other reason than to be with his mother and his dying stepfather in his final days. He travelled from the UK to Australia on the basis of the empathy he felt for his mother and the terrible suffering both she and his stepfather were enduring as a result of the latter’s terminal illness. The evidence discloses no other purpose or motivation behind his initial visit to this country.
The Applicant told the hearing that he liked what he saw and experienced in Australia and most certainly wanted to return to be with his mother and brother. This intention was no doubt motivated by the negative and unhealthy effect of his unhappy marriage in the UK, which had recently ended, as well as his desire to attain appropriate qualifications for gainful employment in the building and construction industry. Upon arrival in this country he immediately applied himself to both looking for work, being employed (to the extent his visa status allowed), and educating himself to improve his employment and small business prospects in this country.
In my view, the expectations of the Australian community would certainly be met if regard is had to this Applicant’s prompt completion of his carpentry trade qualifications (Certificate III of Carpentry) at his cost. To be clear, this Applicant, because of his visa status, had to pay a premium for this study and qualification, such premium costing him well in excess of the amount a resident would pay for the same training/education. He incurred and paid the sum of $22,000 to obtain his carpentry qualifications. He then took those qualifications and found employment in the local building and construction industry.
The evidence of the referee, Mr Nektarios Mastoros,[10] is helpful here. Mr Mastoros provided a written reference and gave evidence at the hearing. He told the hearing that he and the Applicant had worked together for six months at various job sites and they had formed a strong and trusting friendship. Mr Mastoros told the hearing that he currently operates a renovations business in his own name but such is the regard he has for the Applicant that he fully intends to involve (in a proprietorial sense) the Applicant in that business in the near future. For this to occur, the Tribunal heard evidence from both the Applicant and Mr Mastoros that it is necessary for the Applicant to complete his Diploma of building and construction and then obtain his QBCC licence.[11] This would allow the Applicant to act as a co-principal with Mr Mastoros in the aforementioned renovations business. Obviously, the Applicant has not incurred the cost of obtaining this additional proprietorial qualification until the outcome of his visa status is known.
[10] Oral evidence and see exhibit 12.
[11] I note, the Queensland Building and Construction Commission offers a variety of licences.
Both Mr Mastoros and the Applicant gave evidence of a buoyant local building and construction industry with work readily available. Both of them spoke of being confident of attracting a certain volume of work that would fully engage their respective capacities and most likely cause them to employ other tradesmen. The evidence of Mr Mastoros is completed by that of Mr Franz Ripphausen who provided a written reference[12] but did not appear at the hearing. At the time of writing his reference, Mr Ripphausen had known the Applicant for seven months because the Applicant had assisted with his renovations for some work experience. He spoke of the Applicant’s reliability and industry. He thought the opportunity for the Applicant to settle in Australia “…has been the best thing for him and has given him a new lease on life.” Mr Ripphausen said that if the Applicant’s permanent resident status could be resolved he “… would [sic] looking at offering Shane paid employment.” At the risk of repeating myself, I do not see how the expectations of the Australian community are not met by this Applicant’s application (in terms of becoming qualified) and his motivation to establish himself in small business during the barely two years he has been in Australia.
[12] See Exhibit 10: letter of Franz Ripphausen dated 2 April 2015.
At the risk of stating the obvious, the Applicant made it clear at the hearing that his primary motivation behind his endeavours to become established in the local building and construction industry was to be in a position to properly care and provide for the family unit he has established with Jodie. The fact that his beloved mother and brother also permanently reside in Australia is a complementary element to that stated intention.
The various references tendered at the hearing can be dealt with in short compass. Each referee was, to some extent at least, aware of the Applicant’s offending in the UK. Those referees who are closest to the Applicant, namely, Jodie, his mother and Col, all confirmed that the Applicant had fully disclosed his criminal history to them but that nevertheless each of them found his loving and caring qualities to far exceed his history. Ms O’Neill (a friend of the Applicant) told the hearing she knew something of his offending in the UK but be that as it may, she found her experience of his ready assistance in a problem with the management of her rental properties to far outweigh whatever her knowledge of his history may say about him. Likewise, Mr Mastoros said he knew something of the Applicant’s offending in the UK. He made it clear he would have no hesitation in immediately employing the Applicant, even while the Applicant was studying for his further qualifications to become a business proprietor with him.
I think the flavour and tone of the references speak to how this Applicant would be viewed by the Australian community. Granted, he does have a history of offending in the UK. However, as his referees confirm, the positive aspects of his personality and overall demeanour towards others outweighs any shortfall in someone’s expectations of him.
Other Considerations
I now turn to the other considerations listed in paragraph 12 of the Direction.[13] I refer to each subparagraph and comment as follows:
(a)International non-refoulement obligations – not relevant in this matter as the Applicant is from the UK.
(b)Impact on family members – as thoroughly canvassed above (and as accepted by the Minister’s representative) there will be a clear and undeniable adverse impact on the wellbeing of Jodie and her children were the Applicant to be removed from their lives. Mention now should also be made of the impact of that possibility on the Applicant’s immediate family. His mother (Mrs Hodson) gave evidence at the hearing about the devastating impact it would have on her if the Applicant was compelled to return to the UK. She spoke of being reliant on the Applicant and her other son for company and support in the absence of her late husband. She acknowledged that the Applicant did things around the house that her late husband use to do for her. She further suggested that because of her financial position she could not afford to return to the UK.
(c)Impact on victims – having regard to the totality of the evidence, there was no identification of any Australian based victims resulting from the Applicant’s offending in the UK and, consequently, no evidence of any impact on any such victims was suggested.
(d)Impact on Australian business interests – I concur with the Minister’s submission that refusal of this visa will not “significantly compromise the delivery of a major project or delivery of an important service in Australia” pursuant to paragraph 12.4(1) of the Direction.[14] As against that, I note (as does the Minister) that this Applicant had completed initial trade qualifications with an intention to further those qualifications so as to qualify to operate a building and construction business on his own account, or as per the evidence, in partnership with Mr Mastoros.
[13] Direction No. 65, paragraph 12(1).
[14] See Exhibit 2, Respondent’s SFIC at [62]-[63].
CONCLUSION
I have made a finding that on the basis of his offending, the Applicant does not pass the character test as defined in s 501(6) of the Act. I now turn to a consideration of whether the correct and/or preferable decision is to exercise the discretion afforded to me in

s 501(1) of the Act to refuse his visa. I have had regard to the considerations referred to in the Direction.
With reference to Primary Consideration A, I consider this Applicant to be of low risk of causing future harm in the community. Put another way, any level of threat he poses is no greater than that of any other member of the Australian community with his age and demographic profile. To my mind, this factor does not weigh heavily in favour of exercising the discretion to refuse his visa.
With reference to Primary Consideration B, I am of the view that this consideration weighs heavily in favour of not exercising the discretion to refuse the Applicant’s visa and thus to allow him to remain in Australia.
With reference to Primary Consideration C, I am of the view that the totality of this Applicant’s offending and the context within which it occurred: (1) does not place him beneath the expectations of the Australian community as someone who should hold a visa, (2) that his conduct whilst in Australia does not constitute any demonstrated breach of trust or lack of capacity to properly observe and obey the laws of this country, and (3) that his dedication and industry while in this country both serve to meet the reasonable expectations of the Australian community. Accordingly, this factor does not weigh heavily in favour of exercising the discretion to refuse his visa.
A holistic consideration of the four other considerations, to my mind, weighs in favour of allowing the Applicant to remain in Australia.
Having regard to the totality of my above conclusions, I therefore find that the considerations outlined in the Direction do not sufficiently weigh in favour of a decision to exercise the discretion to refuse this Applicant’s student 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 student visa on character grounds should not be exercised. Subject to this Applicant meeting the remaining requirements for his student visa, he should be allowed to remain in Australia.
I note that this decision does not render the Applicant immune from any future revocation of his visa and/or deportation by the Minister, were he to offend in Australia.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

...................[sgd].................................
Associate
Dated: 1 March 2017

Date of hearing: 17 February 2017

Advocate for the Applicant: J. Samuta (Samuta Migration)

Solicitors for the Respondent: L. Gell (Clayton Utz)

[2017] AATA 254

1 March 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Date of hearing:	17 February 2017
Advocate for the Applicant:	J. Samuta (Samuta Migration)
Solicitors for the Respondent:	L. Gell (Clayton Utz)