Iloa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 48
•16 January 2023
Iloa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 48 (16 January 2023)
Division:GENERAL DIVISION
File Number(s): 2022/9236
Re: Siaosi Iloa
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:16 January 2023
Date of written reasons: 25 January 2023
Place:Sydney
The Tribunal sets aside the Respondent’s delegate’s decision made on 26 October 2022, refusing to exercise the discretion pursuant to subsection 500(1) to grant the Applicant a Subclass 100 Partner (Migrant) (Class BC) visa. The matter is remitted to the Respondent for further processing in light of this decision.
................................[sgd]........................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION - visa refusal - citizen of Samoa - Subclass 100 Partner (Migrant) (Class BC) visa - failure to pass character test - substantial criminal record - Pearson v Minister for Home Affairs [2022] FCAFC 203 - where applicant has made a partner visa application - decision set aside and remitted.
Legislation
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases
Khalil v Minister for Home Affairs [2019] FCAFC 151
LYPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2601
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Pearson v Minister for Home Affairs [2022] FCAFC 203Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Secondary Materials
Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
WRITTEN REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
25 January 2023
BACKGROUND
On 31 October 2013, Mr Iloa (the Applicant) applied for a Subclass 100 Partner (Migrant) (Class BC) visa (‘the visa’).[1]
[1] Supplementary Tender Bundle, 7.
On 23 May 2014, he was granted a Partner (Provisional) (class UF) Partner (Provisional) (subclass 309) visa (‘the provisional visa’).[2]
[2] Supplementary Tender Bundle, 1.
He migrated to Australia on a permanent basis on 15 June 2014 at the age of 25.[3]
[3] Movement History: G 158.
On 7 July 2022, his provisional visa was cancelled under section 116 of the Migration Act 1958 (the Migration Act).[4]
[4] Supplementary Tender Bundle, 17.
On 15 July 2022, he was sentenced in the Local Court of New South Wales to 12 months imprisonment for various offences. He was released on parole 9 November 2022 and is currently detained at Villawood Immigration Detention Centre (VIDC).
On 26 October 2022, the delegate decided to exercise the discretion under subsection 501(1) to refuse to grant the visa. The delegate made two operative findings, first, that the Applicant did not pass the character test,[5] and second, applying Direction No. 90, the discretion to refuse to grant the visa was enlivened.[6]
[5] Statement Of Reasons For Refusal Of A Visa Under Subsection 501(1) Of The Migration Act 1958, [para 10]: G/18.
[6] Op cit, para [89]: G/29.
The first finding was based on an undisputed report dated 21 January 2022 by the Australian Criminal Intelligence Commission, which recorded that the Applicant had been sentenced in the Local Court of New South Wales on 15 July 2022 to an aggregate sentence of 12 months imprisonment for various offences.
The Minister’s delegate found that the Applicant did not pass the character test by reference to paragraph 7(c).[7] The delegate did not refer to any other ground, such as paragraph 7(d), in finding that the Applicant did not pass the character test.
[7] According to a Report dated 21 January 2022 by the Australian Criminal Intelligence Commission, the applicant was sentenced in the Local Court of New South Wales on 15 July 2022 to an aggregate sentence of 12 months imprisonment for various offences.
On 22 November 2022, the applicant lodged an application seeking review of the delegate’s decision.
ISSUES FOR DETERMINATION
On 22 December 2022, the Full Federal Court (Allsop CJ, Rangiah and Derrington JJ) held that, for the purposes of section 501 of the Migration Act, the expression ‘has been sentenced to a term of imprisonment’ did not include an aggregate sentence under a provision such as section 53A: Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson).
As noted above, the sentence imposed on the Applicant on 15 July 2022 was an aggregate sentence. Aggregate sentences are provided for by section 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), (‘Sentencing Act’), which provides:
(1) A court may, in sentencing an offender for more than one offence, impose an aggregate sentence of imprisonment with respect to all or any 2 or more of those offences instead of imposing a separate sentence of imprisonment for each.
(2) A court that imposes an aggregate sentence of imprisonment under this section on an offender must indicate to the offender, and make a written record of, the following--
(a) the fact that an aggregate sentence is being imposed,
(b) the sentence that would have been imposed for each offence (after taking into account such matters as are relevant under Part 3 or any other provision of this Act) had separate sentences been imposed instead of an aggregate sentence…
The Respondent’s written submissions dated 23 December 2022 makes no reference to Pearson, which was handed down the previous day.[8] However, perhaps anticipating the decision, the contention is made that there is an “independent” basis for finding that the Applicant has a substantial criminal record, namely paragraph 7(d). The material before the delegate (and the Tribunal) showed that the applicant had been sentenced to two terms of imprisonment – the previously mentioned aggregate sentence of 12 months imprisonment imposed on 15 July 2022, and an earlier aggregate sentence of 8 months imprisonment imposed by the Local Court of NSW on 7 June 2021.[9]
27. As the applicant has been sentenced to 2 terms of imprisonment on 2 separate occasions and the total of those terms is more than 12 months, the applicant has a substantial criminal record as defined under s 501(7)(d).
[8] Respondent’s Statement of Facts, Issues and Contentions (RSFIC).
[9] G/32–36.
Ms M. Mamarot, the Applicant’s solicitor, filed a Statement of Facts, Issues and Contention - Reply, (ASFIC) dated 4 January 2023. She refers to Pearson, which was, she submitted, dispositive of the application. She contended that in light of Pearson, a finding that the Applicant had a substantial criminal record by reference to paragraph 7(c) was not open, and therefore the Applicant passed the character test. Ms Mamarot pressed the point that the delegate relied only on paragraph 7(c) and did not invoke any other ground as a basis for finding that the Applicant did not pass the character test.[10] It was not appropriate for the Tribunal to investigate other potential reasons for finding that the applicant did not pass the character test, such as paragraph 7(d).[11]
[10] See Appendix A.
[11] ASFIC, paras [21]-[22].
EVIDENCE BEFORE THE TRIBUNAL
The application came before the Tribunal on 9 January 2023.
On 9 January 2023, Ms H. Kim, for the Respondent, tendered a document of the same date entitled Respondent’s Submissions. She submitted that Pearson arose in the context of mandatory cancellation decisions under subsection 501(3A) based on paragraph 501(7)(c).[12] The present case involved a decision to refuse a visa under subsection 501(1). The Tribunal was empowered to consider the matter de novo, and could affirm the decision to refuse the Applicant’s visa application by reference to paragraph 7(d), albeit a provision not relied upon by the delegate.[13]
[12] Respondent’s Submission: paras [5]-[6].
[13] Respondent’s Submission: para [7].
The representatives of both parties made oral submissions consistent with their written submissions. It was agreed by both representatives that if the Tribunal was satisfied that the Applicant passed the character test, the matter should be remitted to the delegate for further processing.
I then adjourned the proceedings until 16 January 2023 and directed the Respondent to provide information relating to the Applicant’s visa history, (which was not before the Tribunal) and a more comprehensive written submission on Pearson. The Applicant was also invited to provide further submissions regarding Pearson if they so wished, though none were lodged with the Tribunal. The document entitled Respondent’s Further Submissions is dated 13 January 2023 and was received by the Tribunal on 16 January 2023.
The pressure of time within which the Tribunal is required to operate in cases such as the present do not allow for leisurely reflection or extensive research. The deadline for the Tribunal’s decision was 25 January 2023. After recommencing the hearing on 16 January 2023, I adjourned for a short period to consider the Respondent’s further written submissions, which provided much assistance. When the proceedings resumed later in the morning, I indicated that I intended to set the reviewable decision aside and reserve my reasons, a procedure sanctioned by the Full Federal Court.[14]
[14] See Khalil v Minister for Home Affairs [2019] FCAFC 151, at [39] et seq.
APPLYING THE STATUTORY FRAMEWORK
Subsection 501(6) of the Migration Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Otherwise, the person passes the character test.
Section 501(7) provides:
(7) 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; or …
The argument put by Ms Mamarot in the present case is that the delegate relied on paragraph 7(c) to reach a conclusion that the Applicant did not pass the character test. She says that in seeking to uphold that conclusion on review, it is not permissible to rely on some other provision, such as paragraph 7(d) (or indeed subsection 501(7A))[15] as a basis for finding that the Applicant does not pass the character test.
[15] Subsection 501(7A) provides:
(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
I agree with the general point that the case that an applicant is required to meet in an application for review is defined by the written reasons provided to an applicant by the original decision-maker. This is especially important given the preponderance of unrepresented litigants who appear in migration matters before the Tribunal. There is authority for the proposition that the Tribunal should not expand the scope of review to take in grounds not considered by the delegate in making the original decision, where to do so would introduce an entirely different ground for consideration and prejudice the applicant in preparing for the hearing: see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033, (CPJ16) per Rares J, at paragraphs [58]-[61].
However, I do not think that this point is decisive in the present case, for the same reason I gave in a previous case when commenting upon the decision of CPJ16. In LYPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2601 (LYPM), I noted:
36. … In CPJ16 the Federal Court held that the Tribunal should not expand the scope of review to take in grounds not considered by the delegate in making the original decision, where to do so would introduce an entirely different ground for consideration and prejudice the applicant in preparing for the hearing. In CPJ16 the delegate relied upon paragraph (6)(d)(i) – namely, that if she were allowed to enter or to remain in Australia, there was a risk that the applicant would engage in criminal conduct. The Federal Court held that it was not permissible for the Minister to rove at large over other criteria for failing the character test. Rares J stated (emphasis added):
[60] It may have been arguable that other criteria in s 501(6) could have applied to her, including, it is safe to infer, as the Minister sought to agitate in the Tribunal, s 501(6)(c). However, the delegate had eliminated from the issues about which the applicant needed to satisfy him all criteria in the definition of the character test in s 501(6) other than s 501(6)(d)(i).
[61] Thus, I infer that only the question about which the delegate required the applicant to satisfy him was whether, under s 501(6)(d)(i), there was a risk, if she were allowed to remain in Australia, that she would engage in criminal conduct. The delegate gave reasons to support his conclusion that she had not satisfied him that there was no such risk and refused to grant the visa under s 501(1) on that ground. The applicant sought review of that decision, namely, that she should be refused a visa under s 501(1) because the delegate had found that she had not satisfied him that she passed the character test only on the basis that there was a risk that she would engage in criminal conduct in Australia were she allowed to enter or remain, within the meaning of s 501(6)(d)(i).
37. CPJ has been applied by this Tribunal, although I note that on appeal the Full Federal Court expressed the view that the decision was not “self-evidently correct”.
38. Where the original decision is based on paragraph (6)(d), the Tribunal is required to make a predictive judgment about the risk of some identified harm. In the absence of new facts emerging, it would be unfair to expect the applicant to meet a claim based on a different kind of risk, being raised for the first time at the hearing.
39. The present case was not concerned with paragraph 6(d), but with paragraph (7). In applying paragraph (7)(d) rather than paragraph (7)(c), the criminal record speaks for itself. There is no predictive or normative judgment to be made, and no discernible prejudice to the applicant.
40. The applicant has received sentences of imprisonment as an adult which exceed a total of 12 months. He therefore has a substantial criminal record…
For the same reason, the Respondent should not be estopped in these proceedings from arguing that the Applicant fails the character test by reference to paragraph 7(d) rather than 7(c), where the factual basis for invoking paragraph 7(d) is clear on the face of the criminal record. However, the Pearson obstacle remains.
CONSIDERATION
The dispositive issue is whether, in light of Pearson, paragraph 7(d) should be construed so as to exclude the summation of separate aggregate sentences as a basis for failing the character test. This issue is covered extensively in the Respondent’s further written submissions: see paragraphs 16-31. In short, the Respondent contends that Pearson does not govern paragraph (d) because the reasons for excluding aggregate sentences under paragraph (c) do not apply to paragraph 7(d).
The Respondent accepts that according to Pearson, the sentence relied upon to support a finding that an applicant has a ‘substantial criminal record’ under paragraph (c) must be a sentence imposed in respect of a single offence. It cannot be an aggregate sentence imposed in respect of multiple offences. By contrast, paragraph (d) is concerned with multiple terms of imprisonment. The Respondent argues that the exclusion of aggregate sentences cannot be reconciled with the clear statutory language of paragraph (d).[16]
[16] RSFIC, [19].
Within this context, the fact that Pearson was concerned with mandatory cancellation under subsection 501(3A) is important, as outlined in the Respondent’s further written submissions.
24. The dispositive reasoning in Pearson, as explained above, was concerned with the imputed Parliamentary intention that mandatory cancellation be reserved for ‘only the most serious offending’, and that an aggregate sentence might be the result of conviction of a series of minor offences, ‘none of which on their own could render a person liable to have his or her visa mandatorily cancelled’.
25. That specific context has no relevant application in the context of s 501(7)(d), which is directed to terms (plural) of imprisonment (regardless of the length of the individual terms) which together amount to a period of greater than 12 months. That this was the legislative purpose is clear from the relevant history. Section 501(7)(d) was amended by the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) to reduce the total term from 2 years to 12 months. The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) provides:
The purpose of this amendment is to ensure that repeat or serial offenders who may have been sentenced to a series of lesser terms of imprisonment for multiple offences at the lower end of the scale but which cumulatively add up to a period of 12 months or more, objectively do not pass the character test. A series of sentences such as these raise significant concerns as to the person’s character, including that there may be a history and high risk of recidivism and a clear disregard for the law.
26. It is clear from the above that the Parliament’s intention was that s 501(7)(d) would capture ‘a series of lesser terms of imprisonment for multiple offences at the lower end of the scale’. That is, it was expressly concerned with multiple sentences for multiple offences. This is made clear by the use of the plural ‘terms’ in s 501(7)(d) (noting the Full Court in Pearson considered Parliament had made a conscious choice about the use of the singular or plural throughout ss 501(6)-(7), emphasising the use of ‘a term’ in s 501(7)(c)).
27. It would be inconsistent with this express Parliamentary intention for ‘terms of imprisonment’ in s 501(7)(d) to exclude all aggregate sentences for the very reason that they are sentences for multiple offences. It would result in the absurdity that an aggregate sentence to a term of imprisonment simply falls outside the operation of the ‘substantial criminal record’ provisions in s 501(7) entirely. Not only is this absurd, it is unreasonable, anomalous and capricious in its operation on non-citizens. It would mean that the operation of s 501(7)(d) is wholly dependent on the fortuity of the state/territory the person happens to be sentenced in, and whether or not the sentencing judge decided (in their discretion) to use an aggregate sentencing provision or partial cumulation (sic) or concurrency to achieve totality.
28. Such construction would also be contrary to the purpose of s 501(7)(d), which is concerned with terms of imprisonment and not seriousness of offences (cf s 501(7)(c)). It would be directly contrary to the purpose of the discretionary refusal power in s 501(1), which was to be enlivened, in the context of s 501(7)(d), by reference to persons sentenced to a total term of 12 months or more. And it would be contrary to the thrust of the reasoning in Pearson itself, which looked to the specific context of s 501(7)(c) in its construction of the provision, and expressly noted that ‘[o]f course, nothing would have prevented the Minister from exercising his discretion pursuant to s 501(2) or (3) to cancel her visa’. [References omitted]
The delegate proceeded by reference to the provisions of paragraph 7(c). It is now apparent that the decision to refuse the Applicant’s visa could not be justified on that ground. The Respondent seeks to uphold the decision by reference to paragraph 7(d), arguing that it is unaffected by the Pearson decision. The delegate did not refer to paragraph (d), or for that matter subsection 501(7A).[17]
[17] Subsection 501(7A) applies to concurrent sentences and permits the summation of the individual terms, even though they are to be served concurrently. It has no relevance to the present case.
Ms Mamarot, for the Applicant, contends that it is not permissible for the Tribunal to explore other bases for failing the character test, such as paragraph (d). However, where there is an alternative basis, clear on the face of the criminal record, for finding that an applicant does not pass the character test, it is hard to see that a finding based on that alternative ground would amount to jurisdictional error. However, I accept that there are limits to any such inquiry, dictated not only by procedural fairness but the jurisdictional limits of the Tribunal’s authority, as explained by Rares J in CPJ16 in the quoted passage above. It is not necessary to explore this issue further, because of the view I take on the interpretation issue.
In Pearson, the Full Court was concerned with a non-revocation decision made by the Tribunal under subsection 501CA(4). Ms Pearson’s visa had been mandatorily cancelled under subsection 501(3A), on the basis that she had a substantial criminal record, relying on paragraph 7(c).
Paragraph 7(d) is not a ground for automatic cancellation under subsection 501(3A). However, as in the present case, it may be invoked at the revocation stage[18] where for some reason paragraph 7(c) cannot be relied upon.[19] A decision-maker considering paragraph 7(d) as a substitute for paragraph 7(c) in a revocation case following mandatory cancellation could not avoid the arguments accepted in Pearson itself for finding that Parliament had not intended that a person should lose their visa where the individual offences were hidden from view behind the veil of one (or more) aggregate sentences.
[18] Subsection 501CA(4) of the Act provides:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
[19] For example, in LYPM, a recent decision of the Full Federal Court held that where no conviction is recorded following a finding of guilt, a juvenile offender is taken never to have been found guilty of the offence, and the Minister is prohibited from taking the conviction into account: Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23. Thornton’s criminal record disclosed not only the impugned sentence imposed upon by him as a juvenile, relied on by the original decision-maker under subsection 7(c), but multiple adult sentences that engaged 7(d). There are parallels with the case in hand.
If that is so, it is hard to accept the conclusion that the meaning to be attached to the phrase ‘sentenced to 2 or more terms of imprisonment’ in paragraph 7(d) varies according to whether the visa has been automatically cancelled under subsection 501(3A) or, as in this case, withheld under section 501(1). The argument that a person should not be exposed to visa-less status on the basis of an aggregate sentence applies with equal force in the revocation and visa refusal contexts. Prolonged immigration detention and ultimate removal may flow from a decision not to grant a visa (as in this case), no less than from the decision not to revoke a mandatory cancellation decision (as in Pearson).
CONCLUSION
I am not persuaded that Pearson is relevant only within the context of mandatory cancellation under subsection 501(3A), although that was the factual matrix in which that decision arose. I am not persuaded that much help can be gained from the Second Reading speech relating to the 2014 amendments to section 501.[20] There is no doubt that the amendment was intended to deal with repeat offending, but it says nothing about aggregate sentences.
[20] Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)
I note that the Federal Court framed the issue as applying to section 501 without qualification, namely:
whether, for the purposes of s 501 of the Migration Act, an aggregate sentence of imprisonment, under a provision such as s 53A of the Crimes (Sentencing Procedure) Act 1999(NSW), is a single sentence to a term of imprisonment or a sentence to “2 or more” terms of imprisonment, or is neither.[21] [Emphasis added]
[21] Pearson [1].
Ms Kim has pointed to anomalies that might flow from applying Pearson uniformly across subsection 501(7). But accepting her argument would produce the apparent anomaly that a person who received two aggregate sentences of six months would fail the character test, but a person receiving an aggregate sentence such as that imposed in Pearson of 4 years and 3 months in respect of 10 offences would pass the test.[22] In each case the sentence imposed would sweep up a multiplicity of underlying discrete offences. A person’s migration outcome should not depend on how the offences are bundled for the purposes of applying the character test.
[22] Pearson [40].
As noted above, it was agreed by both representatives that if the Tribunal was satisfied that the Applicant passed the character test, the matter should be remitted to the delegate for further processing.
The present law is in a state of flux. Pearson may be appealed to the High Court, or the law may be amended.[23] One consequence of the decision is that many non-citizens have experienced mandatory cancellation or visa refusal and involuntary removal on a basis now shown to have been unlawful. I do not think that the Applicant should bear the burden of such legal uncertainty. For the moment he remains in immigration detention, but the processing of his visa application should continue. I consider that this is the correct and preferable administrative decision under the present circumstances.
[23] The Tribunal was informed that the decision may be the subject of an appeal to the High Court of Australia, although a decision was pending the finalisation of orders by the Federal Court.
DECISION
The Tribunal sets aside the Respondent’s delegate’s decision made on 26 October 2022, refusing to exercise the discretion pursuant to subsection 500(1) to grant the Applicant a Subclass 100 Partner (Migrant) (Class BC) visa. The matter is remitted to the Respondent for further processing in light of this decision.
I certify that the preceding 37 (thirty-seven) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
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Associate
Dated: 25 January 2023
Date(s) of hearing: 9 and 16 January 2023 Solicitors for the Applicant: Ms M Mamarot, South West Migration & Legal Services
Solicitors for the Respondent: Ms H Kim, Australian Government Solicitor APPENDIX A – DELEGATE’S REASONS
CHARACTER TEST
5. Mr ILOA’s Australian Criminal Intelligence Commission Check Result Report released on 21 January 2022 indicates that on 15 July 2022, Mr ILOA was convicted in the Local Court of New South Wales at Fairfield of, the below offences for which he was sentenced as shown (Attachment A):
• Contravene prohibition/restriction in AVO (domestic) (H87768314) – Aggregate 12 months imprisonment
• Stalk/intimidate intend fear physical etc harm (domestic) (H87768314) – Aggregate 12 months imprisonment
6. On the same day, the following offences were called-up, and Mr ILOA was sentenced as shown:
• Common assault (DV)-T2 (H452723992) – Aggregate 12 months imprisonment
• Contravene prohibition/restriction in AVO (Domestic) (H77504974)– Aggregate 12 months imprisonment
• Common assault (DV)-T2 (H80557484) (two counts) – Aggregate 12 months imprisonment
• Contravene prohibition/restriction in AVO (Domestic) (H80557484) – Aggregate 12 months imprisonment
• Stalk/intimidate intend fear physical etc harm (domestic)-T2 (H80557484) – Aggregate 12 months imprisonment
7. Under s501(6)(a) of the Act, a person who has a substantial criminal record does not pass the character test. Section 501(7)(c) provides that for the purpose of the character test a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
8. I have considered the submissions made by Mr ILOA and the documents he has submitted in support of his submissions Attachments K to R2.
9. In the submissions/documents that Mr ILOA provided, he does not dispute the information in the Australian Criminal Intelligence Commission Check Result Report released on 21 January 2022 regarding his criminal convictions and sentences, or that he does not satisfy the character test.
10. Accordingly, I am not satisfied Mr ILOA passes the character test (as defined by s501).
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