Irani and Minister for Immigration and Border Protection (Migration)

Irani and Minister for Immigration and Border Protection (Migration) [2017] AATA 3051 (7 December 2017)
Division:GENERAL DIVISION
File Number(s): 2017/5847
Re:Shahzad Irani
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Bill Stefaniak AM RFD, Senior Member
Date:7 December 2017
Date of written reasons: 22 December 2017
Place:Sydney

The Tribunal sets aside and remits the decision under review, which is the decision made by the delegate of the Respondent on 28 September 2017 with a direction that the visa applied for by the Applicant not be refused under s 501 of the Migration Act 1958 (Cth).
.........................[sgd] ...............................................
Bill Stefaniak AM RFD, Senior Member
CATCHWORDS
MIGRATION – visa refusal – character test – risk that person would engage in criminal conduct in Australia – whether unacceptable risk of harm – prospect of rehabilitation – primary and other considerations – decision set aside and remitted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501(1), 501(6)
CASES
Apire v Minister for Immigration and Border Protection [2014] AATA 193
Amer Muhammad v Minister for Immigration and Border Protection [2016] AATA 795
Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Intesir v Minister for Immigration and Border Protection [2017] AATA 503
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) FCR 422
Godley v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 774
Mliner and Minister for Immigration and Multicultural Affairs [1997] AATA 788
Sauvao v Minister for Immigration and Border Protection [2014] AATA 170
Wang and Minister for Immigration and Border Protection [2014] AATA 89
SECONDARY MATERIALS
Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Bill Stefaniak AM RFD, Senior Member
22 December 2017

The applicant, Mr Irani, seeks review of a decision by the Minister’s delegate to refuse the grant of a Skilled (Residence) (Class VB) subclass 886 visa pursuant to section 501(1) of the Migration Act 1958 (Cth) (the Act) as amended. That decision is dated 28 September 2017. The applicant is a citizen of India and he is married to an Australia citizen, Ms Maria Umar, who became a citizen, in 2011, having come out from Pakistan on a visa herself. The applicant initially applied for the visa on 17 June 2009 and there appears to be some controversy, which was not explained during the course of the hearing, in that, for some reason, consideration of his application kept being deferred.
On 29 March 2016 the applicant was issued a formal advice letter informing him that it had come to the Department’s attention that he might not pass the character test because of his criminal history, but that upon consideration his visa application would not be refused and would continue to be assessed by the Department’s office in Adelaide. The applicant’s conviction on 17 February 2016 had not come to the attention of the Department at that stage. It subsequently did and on 8 May 2017 the applicant was issued with a notice of intention to consider refusal, and that notice informed him that his history of offending suggested that he may not pass the character test pursuant to section 501(6)(d) of the Act.
Relevantly, section 501(6)(d)(i) of the Act provides that a person may not pass the character test if, in the event they are allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia. The applicant made submissions to the Department on 5 June 2017 in respect of that notice. On 28 September 2017 the Department refused a grant of a visa to the applicant on the basis that he did not satisfy the character test in section 501 of the Act. The Department gave him nine days in which to hand himself in, which he did.
He lodged an application to the AAT the next day, on 29 September 2017, for a review of the delegate’s decision. The issue on review is whether or not the applicant passes the character test as required by 501 of the Act, and if not, whether the Tribunal should exercise its discretion to affirm the decision to refuse the grant of a visa. It should also be noted in this matter, when the applicant was taken into detention he made an application to the Tribunal for an order to stay the operation or the implementation of that decision on 28 September 2017 by the Minister’s delegate.
That decision came before Deputy President Rayment, who, in a decision dated 27 October 2017, it appears with some reluctance, stated:
s 196 requires that I refuse the application under s 41 of the AAT Act. I do not need to deal with arguments put to me as to why s 41 I authorises the making of the orders sought.
Deputy President Rayment indicated, because he was constrained by law, that is by section 196 of the Migration Act, he had to refuse the interlocutory application, but in doing so, made a number of comments which are of some relevance to this Tribunal.
This Tribunal heard the matter on Monday 4 and Tuesday 5 December 2017.
Legislative framework
The relevant law in relation to this particular matter is the Migration Act 1958 (Cth). The stated object of the Act is to regulate, in the national interest, the coming into and presence of non-citizens in Australia. Section 501(1) of the Act provides, in part
The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that a person passes the character test.
Note: Character test is defined by sub-section 6.
Sub-section 6 then says:
For the purposes of this section, a person does not pass the character tests if:
…
(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;
(iii)    the person is not of good character or;
(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
Annex A to Direction Number 65 goes into some detail as to the meaning of the character test. Annex A is replicated in the G-documents starting at page 193. I will examine it later after I deal with the facts in this matter in assessing whether in fact the applicant does not pass the character test, or indeed could be said to have actually passed the character test as set down by the legislation.
It should also be noted, that the Minister and the Tribunal, in exercising its powers on review, is given a discretion to refuse to grant a visa if the decision-maker is not satisfied that the applicant passes the character test, and section 499 provides, in part:
(1) the Minster may give written directions to a person or body having functions or powers under this Act if the directions are about the performance of those functions or the exercise of those powers; and
(2A) a person or body must comply with a direction under sub-section 1.
In exercise of the power given by section 499(1), the Minister issued Direction Number 65. The Direction was issued on 22 December 2014 and provides general guidance for decision makers and the principles decision makers should consider when deciding whether to exercise the discretion to refuse a non-citizen’s visa under section 501(c)(a). Paragraph 6.2 provides general guidance in exercising the discretion to refuse the grant of a visa. Without going into detail it provides: “the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.”
Additionally, paragraph 6.2 provides that:
In order to effectively protect the Australian community from harm and to maintain the integrity of public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner.
Further, paragraph 6.2 outlines that the principles provide a framework within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under 501, or whether to revoke a mandatory cancellation (not applicable here.) The relevant factors must be considered in making a decision under section 501 of the Act. They are identified in part A and B, whilst factors that must be considered in making a revocation are identified in part C.
The principles are set out in paragraph 6.3, and they are relevant here. There are seven of them. The first principle is that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter 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 in the Australian community.
The second principle is that 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. Whilst I regard the applicant’s crimes as certainly very significant crimes, I think as counsel for the applicant submitted, “there is serious and there is serious”. Clearly there are very strong references made in the Direction and the various pieces of legislation in relation to the most serious offences, such as murder, violent assaults on persons, sexual offences, supplying drugs .and serious dishonesty offences
This is important, because the third principle is that a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly, or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
The fourth principle states that, in some circumstances, criminal offending, or other conduct, and the harm that will be caused if it were 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.
The fifth principle is that Australia has a low tolerance of any criminal, or other serious conduct, by people who have been participating in or contributing to the Australian community only for a short period of time. However, Australia may afford a high level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in Australia and in the Australia community for most of their life, or from a very young age.
The sixth principle is that 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 should be allowed to come to or remain permanently in Australia.
Finally, the seventh principle states that the length of time a non-citizen has been making a positive contribution to the Australia community and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled or their visa application refused.
Informed by the principles in paragraph 6.3 the decision maker must take into account the considerations in part B of the directions. They include primary and other considerations.
Paragraph eight provides that a visa applicant should have no expectation that a visa application will be approved, and it further provides that the primary consideration should be given more weight than other considerations, and indeed that one or more primary considerations may outweigh other primary considerations. The primary considerations, in this matter, are at part B, page 203 of the G documents. They include: protection of the Australian community from criminal or other serious conduct, best interests of minor children in Australia and expectations of the Australian community. For other considerations the text states at page 206 of the G-Documents:
In deciding whether to cancel a visa other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
I will return to those matters at a later point in time.
The applicant came to Australia in 2007. He has worked in various capacities, he has studied, he has a Master’s degree, and he has TAFE certificates. He is a chef. He is running, or was until he entered immigration detention, a business where his wife was a director but he had put a substantial amount of money into the business.
Relevant facts
The businesses were a 7-Eleven on the Central Coast, which employs some 10 people. He and his partner, who is now his wife, also took over a business, a steakhouse, again on the Central Coast, in early 2016. It was owned by a professional woman before then, a pharmacist, who had let it run down. It appears it had about seven or eight employees, and that has been built up by the applicant and his wife in less than 2 years to about 30 current employees, mainly part-timers. The applicant was very active in that business, going there, it would seem, two or three hours a day and helping train the young employees, especially in the art of cooking.
The applicant unfortunately experienced, in India, some rather traumatic events, including the Mumbai train bombings in 2006, and shortly thereafter a further terrorist event in Mumbai. These peripherally involved his sister who, it seemed, was on a train which narrowly missed out on being hit by the Mumbai bombers. The applicant was on a motorbike and he had to race to the train to see if his sister was alive, dead, missing, or otherwise. On the way he had to ride through bits and pieces of human remains as a result of the bomb blast, and lots of blood. Luckily his sister was on the next train and was unhurt. This was compounded sometime later by his sister also being in the vicinity of a further terrorist attack in Mumbai.
He did not receive any treatment, but it became quite apparent that he was suffering from Post-Traumatic Stress Disorder and he was duly diagnosed with this in Australia. Both parties accept that as a fact. There were references in various documents before the Tribunal from 2012 in relation to the PTSD, and indeed he appears to have undergone a reasonable amount of treatment in relation to that condition. He spoke particularly highly of two of his treating health professionals.
It was also accepted, and there was no evidence to dispute this, that his wife had been particularly helpful too in overcoming that trauma, to the stage that he can now take public transport, which he, in evidence, has now been taking since at least this time last year, (December 2016). It seemed to be a reasonably long process, with his wife having to initially take him to a train station, hold his hand if he got nervous. Then, having overcome his fears, go into the train station. Then they would progress to getting on a train. He would initially want to get off at each stop. She would hold his hand and stop him. It has gotten to a stage, according to the evidence, a bit further back than 12 months, but certainly in the last 12 months, where he is able to take public transport alone.
There is ample evidence in the documents before the Tribunal to indicate that he was unable to take public transport up until 2016, and as a result of an unfortunate breach of the law back in 2010 when he was convicted of low range PCA and lost his licence, he has incurred a significant record in relation to serious traffic matters as a result of his persistence in driving and not taking public transport.
I note, in the Respondent’s Statement of Facts, Issues and Contentions, they state there are six categories of offences over a period of time. The first, is an infringement notice issued on 2 April 2010, for driving on or over continuous white edge lines. He was fined $197. That is an infringement notice, and I think it is probably quite proper that I say no more about that. It is relevant, but it was not pushed, and I think quite rightly so, by the respondent’s representative, apart from it being mentioned in a document before the Tribunal. It is not a conviction by a court. It did not form part of the National Police Certificate.
The offences that are mentioned and are significant here are in the National Police Certificate, found at page 27 of the G-documents, and dated 10 November 2016. It is common ground that he has not offended since the date of this document, nor indeed since he committed his last offence in November 2015,
The National Police Certificate indicates that the applicant’s first brush with the criminal law, in terms of a court appearance, was at the Liverpool Local Court of 14 October 2010, where, for driving with a low range prescribed alcohol concentration (PCA) he was fined $250 and was disqualified from driving for three months. On that occasion the applicant had been at a buck’s night. His friend (the “buck”) had been picked up for drink driving. The applicant drove his friend’s car to the police station. At the station, the applicant was required to take a breathalyser which he duly failed.
The applicant indicated in his oral evidence to the Tribunal that he certainly had one drink towards the end of the night right before he drove his friend’s car to the station. He had also indicated to the police, when apprehended, that during the course of the evening he had had three or four bourbon and cokes. His reading was 0.067. The applicant further stated, in oral evidence that he did not feel effected and that he hardly drank alcohol.
The applicant’s next offence resulted in him being convicted at the Fairfield Local Court on 10 January 2011. The applicant was convicted for providing a false name and address. He was fined $800. He was also convicted for driving while disqualified from holding a licence. As a result of driving while disqualified from holding a licence he was released upon entering into a two year good behaviour bond, fined $1000, and his licence was disqualified for two years, commencing on 14 January 2011. It appeared on that occasion he had produced an Indian licence and had, for what was probably in reality a short period of time, but with some consistency lied to the police.
On 19 September 2012, he was again convicted of two counts of driving while disqualified. He received a community service order of 100 hours. His licence again was disqualified for the statutory period of two years.
On 4 March 2015, he was convicted of exceeding the speed limit. He was travelling at about 101 kilometres in an 80 zone. It appeared that was in an area where there was a change of speed limit from 100 to 80kph. He was fined $250. On the same date he was also convicted of driving a motor vehicle while disqualified. He received a community service order of 200 hours for this offence and was again disqualified from driving for two years.
On 17 February 2016, he was convicted of driving a motor vehicle during a disqualification period. The court sentenced him to a term of imprisonment of 10 months commencing on 17 February 2016 and concluding on 16 December 2016, wholly suspended upon him entering a bond to be of good behaviour for 10 months.

So, whilst there is not a progression in the terms of the seriousness of offences, there is a progression in terms of the seriousness of penalties, because he had persisted on four separate occasions, driving a motor vehicle whilst he was disqualified from doing so. As well as that, he has his speed and his low range PCA conviction. Apart from exceeding the speed limit these are all are serious offences under the transport rules applicable to New South Wales and Australia.
There was some issue raised at the start of the hearing as to whether, in fact, these were criminal offences or not. Both counsel conceded that they are classified (given that they are serious traffic matters) as criminal offences. The reason for that is that they are dealt with in the Magistrates Court, and have penalties of imprisonment attached to them. Therefore, they are classed as criminal offences, and have been regarded as such, by law, in Australia for many decades.
On three of the occasions, the applicant misled the police. For example, on 23 October 2010 he was asked to produce a licence, and he produced an Indian driver’s licence in someone else’s name. They asked him to produce further documentation. He then produced an ANZ Bank account, but the police said he continued to lie about his true identity for some time, until he eventually made full admissions about his true identity. The police then took the appropriate action as a result of that.
The second occasion was on 11 December 2014, when the applicant was caught speeding he produced his Indian driver’s licence, which was actually in his name, and it displayed a picture of him. However, the police quickly discovered that he had an Australian driver’s license.
On 4 December 2015, he was again stopped at a random breath test. He produced his Indian licence, in the name of Shahzad Delcar, which was his name before it was legally changed. He then produced a bank card in his name. He told the police that he had been in Australia for about a year as a student studying accountancy at TAFE. This statement was incorrect. It was quickly revealed that he the applicant had been in Australia for longer than a year, and that he had previous convictions for driving while disqualified.
In considering the applicant’s convictions, I note his excuses as to why he was driving but do not find them to be in any way mitigating factors.
The other matters which were put by the respondent in relation to character are in relation to four occasions where he incorrectly filled in his re-entry card into Australia, namely, on: 16 December 2010, 17 June 2012, 28 April 2014 and 30 June 2015.
The entry cards required the applicant to answer the following questions: “How long do you intend to stay here?”, “Are you an Australian citizen?”, and “You must answer every question. If unsure, mark X, yes”. To the question “If you are not an Australian citizen, do you have tuberculosis?” the applicant answered “No”. The applicant also answered “No” to the question “Do you have any criminal convictions?”
The applicant stated in oral evidence to the Tribunal that he asked an official, when he was completing the form in 2010 words to the effect of “I have a traffic conviction what do I do?” and was told “no, you don’t have to report that”. I must say, that does have the ring of truth to it and I have no reason to disbelieve that that event may well have occurred, because indeed some officials may not actually know that traffic offences are included as criminal offences and the card itself may well lead a lay person to believe that criminal means something under the Crimes Act, for example, and not a traffic conviction. It is not clear. Other government documents certainly make it quite plain that the individual filling out the form is required to put traffic convictions and everything else down, thus making it quite clear. I consider that the applicant may well have believed he was answering the questions correctly.
I note the applicant answered “Yes” to a number of other questions such as question 7 on his 29 April 2014 card which asked whether he was bringing in grain, seeds, bulbs, straw, nuts. On the same card, the applicant also declared that he was bringing in more alcohol and cigarettes than he was allowed to. He also answered “Yes” to bringing in grain, seeds, bulbs, straw and nuts on his 30 June 2015 card.
Equally, on 17 June 2012 he indicated he was bringing in some medicines, steroids, etc. under question 1 on the card, as he did on 16 December 2010 and on the same date, he admitted he was bringing in more alcohol or tobacco than he was allowed.
Overall, it does seem that the applicant carefully filled out the re-entry cards and was quite prepared to answer “yes” to certain questions. This gives further credence to his explanation as to why he didn’t disclose that he had criminal convictions. Accordingly, I do not attach a huge amount of weight to the applicant’s non-disclosure of his criminal convictions. However, I do place a lot of weight on the applicant misleading the police on three occasions when he was pulled over for driving while disqualified. They are very relevant factors.
The applicant, as I said, gave evidence, and he was cross-examined by the learned counsel for the respondent, as indeed were the other two witnesses. The applicant indicated, as I have indicated earlier, what he did in terms of his business and how he came to be married. He said he initially met his wife some years ago. She was a friend. She went from being his friend to his best friend, to his partner, to his wife.
The applicant further stated that his family in India belonged to a small sect in the Parsee community, and they are followers of the Zoroastrian religion. They were originally from Persia and left Persia when Persia was taken over by Muslim forces 1000 years ago. He lived in the Mumbai area.
His wife, Maria Umar, who is now known as Mrs Irani met him in 2010. She was blind in one eye, basically from childhood, and her other eye has deteriorated. She is legally blind.
She is from a Muslim family and their child was born while the applicant was in immigration detention on 22 November 2017. The applicant was very upset that he was not able to see the birth of his first child.
The birth of his son also seemed to affect him greatly. He stated that he realised he was no longer a carefree younger man but a married man with very significant responsibilities. These responsibilities were compounded by the fact that his wife is blind and he had to do a lot for her, because she simply had trouble living by herself.
The applicant gave oral evidence in relation to his driving offences. Whilst I felt that he had perhaps not quite appreciated just how serious his behaviour was, the birth of his child and the two months in immigration detention seemed to have highlighted the consequences and seriousness of the offences.
Whilst he perhaps did not seem to quite appreciate the gravity of what he had done until very recently, he was open in agreeing that everything said by the police was correct. He also admitted that he had lied to the police. It certainly seemed that, in more recent times, he was willing to accept responsibility.
His wife, because she is the Australian citizen, is the sole director, since he only had the bridging visa, and he manages the business, so that he could be at home when he needs, to help her with the tasks such as cooking, cleaning, and shopping. She only had occasional help from relatives. He and his wife gave evidence that their relatives had some problems with the couple because of the mixed marriage.
The applicant’s wife also gave oral evidence to the Tribunal. She stated that she was currently staying with her sister-in-law and her mother and two small children in a two bedroom flat. However, she could only stay there for a few days before she would have to leave.
She said that since the applicant had been in immigration detention life was very difficult for her. She could not do things like measure the amount of food she had to give the baby. She would bump into things. Luckily for her a relative was actually visiting her at the time she had to go prematurely to hospital to give birth. I must say it was lucky for her that was the case, because it might have been quite tragic had that relative not been there.
She further told the Tribunal that the she had limited assistance from her father who appears to be a very successful businessman who moves between Australia and Pakistan.
On this basis, Mrs Irani had significant issues if the applicant is not there to help her.
The applicant in his evidence before the Tribunal made some further points he wished to have taken into account.
One of these points, which is quite poignant (see paragraph 16 of his statement) is that he does not believe he is a risk to the Australian community, and he pointed to the fact that the worst sentence he has received is a suspended sentence. Additionally, he emphasised that the Department of Immigration allowed him nine days to present himself to the authorities after he was told his visa had been refused.
Paragraph 17 of the applicant’s statement sums up what he said on several occasions during the course of his evidence before the Tribunal:
Most importantly, I have married an amazing person who has given me love, companionship, and purpose in my life, and most importantly she has now given me the most wonderful gift of a child. I could not imagine now doing anything that would put their welfare at risk.
He also told the Tribunal about his mental health problems, his Post-Traumatic Stress Disorder, the difficulties in relation to India and Pakistan, which I will come to later and mentioned he suffered from glucose 6-phosphate deficiency, G6PD, which necessitates him being on a strict diet and for which he has to take certain prescribed medicines. It also means he has to avoid lentils, chickpeas, soya, a lot of food that is a common ingredient in India and Pakistani food, and he is allergic to sulphur.
Whilst that is a problem, it appears he has had that condition prior to coming to Australia and I do not regard it as being such a significant problem as to be insurmountable. I do note, however, that since he has been in immigration detention, it took him a month to convince the authorities that it was a problem and he had to be hospitalised before they realised he did need some medical treatment.
Obviously his Post-Traumatic Stress Disorder has been a real problem until recently, and as a result of some very effective psychiatric intervention by health professionals and the love and care and patience of his wife, he has largely overcome the phobias that were associated with that disorder. That is certainly a very positive development
He struck me as being a sincere young man who has probably only recently realised the consequences of his actions in relation to his driving offences.
He sensibly, when asked the question by the Tribunal as to whether he had driven on other occasions, declined to answer on the grounds he would incriminate himself. I cannot take it much further than that, but I certainly think the comment made by counsel for the respondent is apt, and that is, if he had not (driven on other occasions) he would have to be the most unluckiest man alive to have been picked up on these occasions, if they were the only time he drove.
The Tribunal must consider what the likelihood of him driving, now, or in the future is. This must be assessed in light of the applicant now being able to take public transport again having overcome his PTSD. The Tribunal notes, it was initially advised that the applicant was eligible to get his licence back in March 2018. It transpired that it was actually March 2019 and so his suspension from driving applies for about another 15 months or so.
The other evidence of relevance to my consideration is that the applicant and his wife have a mixed marriage. This means going to Pakistan would be highly problematic and could lead, to he, his wife, and/or child suffering persecution and even potentially being killed.
The Tribunal notes that Pakistan is a fairly unsettled state with some extremist groups such as the Pakistani Taliban. Additionally, there are significant barriers for women in Pakistan.
Equally, the applicant and his wife raised in oral evidence that if the applicant was sent back to India there may be potential problems as they do not fit into any one sect or religion.
The applicant and his wife indicated that they have not given their child a religion, which also would cause significant issues to the family were they to go back to India. The applicant also indicated, that when they were arranging to go back to India for a visit to see his sister for her birthday (his sister and mother still live in Mumbai) his wife’s visa came two days late and required his wife to report to the local police station twice a day. That in itself, I think, is indicative of potential problems where the family to return to India.
Sometimes, when one just reads a fact situation prior to hearing from the parties in these types of matters it may seem marriage can be a convenient tactic to enable a person to stay in Australia. However after hearing from the applicant and Mrs Irani, and upon reading the more recent statements, I distinctly got the impression that this was very much a marriage based on love.
The relationship between the applicant and his wife developed over the years. They had gone from friends to best friends to husband and wife. Mrs Irani was pregnant when the applicant was taken into custody. It is clear to this Tribunal that they are very much a loving couple.
Alicia Rodriguez, a former multicultural disability advocate assigned to Mrs Irani after the applicant was detained also gave evidence.
She indicated that she had first seen Mrs Irani at the family home on 12 October 2017 (this year), after Mr Irani went into detention In paragraph 6 of her statement she said:
My immediate impression was that Maria was in a highly distressed state and no idea how to face her situation in which she found herself. I learned that she was legally blind, having no sight in her right eye and only very limited sight in her left. She was about 7 months into her first pregnancy and had been diagnosed with gestational diabetes.
She spent an hour-and-a-half with Mrs Irani on that occasion, and went on to say:
She cried most of the time, and expressed deep anxiety about her husband being in detention and about the future of herself, her husband, and their baby as a family unit. She also expressed feelings of guilt that her husband had been arrested for driving without a licence when he was driving her to an appointment. I formed the impression that Maria and her husband have a deep and caring relationship and that she depends greatly on him for emotional, physical, and financial support. She also deeply misses her contact with him that she had depended on throughout their relationship, until his detention by Immigration.
Ms Rodriguez indicated that Mrs Irani has considerable difficulties coping with everyday life, and although she had some family in Sydney, they were not in a position to provide her with full-time assistance. She had to spend most or at least a part of each day alone. It was a sizeable property. They had previously kept two dogs, a bird, and chickens, (which the Tribunal was later told has to be got rid of as a result of the applicant going into immigration detention).
Ms Rodriguez said Mrs Irani had obvious difficulties with food preparation, shopping and cleaning, and was in danger of harming herself around the house. The doctor had warned her to check her blood sugar levels every morning. She could not do that. She could not take public transport on her own, and that, in Ms Rodriguez’s opinion, was an exacerbating factor affecting her state of general distress and anxiety.
She paid another visit to Mrs Irani and had a number of telephone conversations with her following the first visit. Ms Rodriguez has since left and another, support person, has taken over her role. Without daily assistance, the requirements of feeding, changing the baby, and generally caring for an infant, will be testing her capabilities in Ms Rodriguez view. Additionally, the applicant was her main source of income. In relation to this Ms Rodriguez stated:
funded disability supports under the NDIS package will at the very least require a budget to cover, domestic assistance, assistive technology, some home modifications, transport/mobility allowance and some degree of personal assistance under core supports and capacity building to engage with the community and minimise her social isolation.
It was very difficult to estimate the costs, but she thought a figure of $40,000 or more would not be unreasonable.
Ms Rodriguez also indicated that it would take quite a while for an NDIS assessment to take place. Ms Rodriguez expressed concern about the Mrs Irani’s long-term future. She stated that if the applicant was deported it would be at least 12 months before he could re-apply for an Australian visa and there was no guarantee that his application would be successful.
Cases
Counsel for both parties referred the Tribunal to a number of cases in relation to the issue of good character. None of these cases are directly on point and some of them referred to slightly different tests. For example, in the citizenship case of Apire v Minister for Immigration and Border Protection [2014] AATA 193. The decision under review there was affirmed. In that case Mr Apire was Sudanese and he was 25 years old. He had a significant criminal record including a number of driving offences. Mr Apire was convicted of PCA offences and driving without authority. On one occasion he was apprehended and then went back to his vehicle five minutes later and drove again. His record is not dissimilar but was somewhat worse than the applicant’s record.
On his application for citizenship he answered “no” to the question:
Have you been convicted or found guilty of any offences overseas or Australia (include all traffic offences, which went to court, including offences declared in your permanent residency application, and spent convictions)?
On the positive side, Mr Apire had, been quite involved in amateur soccer and setting up the Jaguars Football Club which consisted of three boys’ teams and a girls’ team. He was secretary of the club. He was also active in a national organisation of Sudanese people (the Obbo Community Association) and other education and fundraising activities. He had references to support his application. At paragraph 15 of that particular case, the Tribunal stated:
In view of his criminal history, it is quite clear that Mr Apire has a pattern of disobeying traffic laws over an extended period. He has repeatedly driven a motor vehicle without a current driver’s license; he has driven a motor vehicle while under the influence of alcohol; and he has driven a motor vehicle without current registration. He has been charged and convicted of multiple offences as a result. Behaving in this manner, he has placed his passengers (including children) and other road users at risk of harm.
The Tribunal went on to say:
Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly.
And the learned Tribunal agreed with Wang and Minister for Immigration and Border Protection [2014] AATA 89.
Laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values. Mr Apire has two such offences.

2 drive whilst disqualified maters were committed after the applicant made his citizenship application. This did not stand him in good stead .This caused the Tribunal some problems, even though they accepted he undertook good work in the community and was a well-motivated person. These behaviours point to good qualities in his character ( Mr Apire was sad and remorseful but the Tribunal said:
In either case, I am satisfied that Mr Apire’s lack of insight weighs against a finding of good character at this time.
This case does not simply turn on Mr Apire’s traffic offences, although those are concerning in themselves. The important point is that his flagrant disregard for law and for community safety, and his lack of insight, point to aspects of his character that are not consistent with a person who is of ‘good character’ for the purposes of the Act.
The Tribunal stated at paragraph 27:
Mr Apire may make a further application for citizenship in the future. He strikes me as a young man who has many good qualities inherent in his character. It is most unfortunate that he has allowed these to be obscured by his past offending behaviour. He should not be disheartened by this decision. To my mind, the qualities that his referees identify in his character, which are also apparent to me, may stand him in good stead in the future if he walks away from his past offending conduct and he develops a more mature appreciation for the rule of law and the values of the Australian community, especially in relation to community safety.
In the case of Mliner and Minister for Immigration and Multicultural Affairs [1997] AATA 788Mr Mlinar was born in Yugoslavia and was a Yugoslav citizen. He was of Serbian extraction. He was subject to a 3 year good behavior bond in relation to a charge of assault occasioning actual bodily harm. He was an excellent sportsman (handball) and was in line to make the Australian the Olympic team in 2000. To do this he needed to become an Australian Citizen. He had satisfactorily completed 30 months of his bond and had 6 months left to run on it.
The respondent, in that case, did not dispute the applicant’s prior good behaviour but submitted that any breach of his bond would see him recalled for sentencing, which would prevent a grant of citizenship at the time, and it was inappropriate for the Tribunal to grant citizenship while his criminal matter was effectively unresolved.
Deputy President Chappell made a number of sage observations. He started by affirming the practice of following guidelines laid down:
The Tribunal has consistently stated that it will follow publicly declared Ministerial policy or Departmental Guidelines unless there is some good reason not to.
And he quoted Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, as authority for that proposition.
Deputy President Chappell made the very practical observation in paragraph 26 of his decision that there would be only six months remaining on the good behaviour bond and that the applicant had been a good law-abiding citizen for the first two and a half years of the bond and had not breached it:
With these two factors in mind, the Tribunal chooses to exercise the discretion granted to it under s 14 of the Act and defer the making of a final decision on the applicant’s eligibility for citizenship until his good behaviour bond expires on 22 November 1997.
DP Chappell then indicated if that occurred without incident, then Mr Mlinar should be granted citizenship. It was only for six months and he would still be able after that to qualify for the Olympics and the decision did not affect him taking part in State championships.
It was a very practical decision by the Tribunal in relation to that particular case.
Another case in point and which deals with the same test as in Mr Irani’s case is the case of Amer Muhammad v Minister for Immigration and Border Protection [2016] AATA 795, Deputy President Frost, 11 October 2016.
Mr Muhammad was a taxi driver. He had a number of offences. His most serious was a middle range PCA in 2004, for which he was fined $1000 and disqualified for driving for six months. He had been picked up driving through a red light and his reading was 0.10. His car breaks were also found by police to be defective.
Since then, he incurred a number of traffic infringements (10) between 2002 and 2014. He was a taxi driver. He had in recent times taken some specific taxi driver courses to assist his driving. The Tribunal looked at the term ‘good character’ and quoted the case of Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) FCR 422 where Lee J said at 431-432:
Unless the terms of the Act and Regulations require some other meaning be applied, the words ‘good character’ should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact whilst the latter is a review of subjective public opinion. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
The Tribunal then went on at paragraph 19 to say:
While it was conceded on Mr Muhammad’s behalf that his driving record is ‘by no means exemplary’, the question is not about his driving ability but whether he is of good character. Decision-makers should be careful not to conflate the two concepts, for the enquiry about a person’s character goes far beyond his or her driving record.
DP Frost indicated:
In Mr Muhammad’s case, it is less instructive to focus on his driving record as such, than it is to focus on what he has done to improve it.
Mr Muhammad recognised he needed to change. He completed the AAMI safe driver course and he was rated very highly on that. He had some excellent character references as well, which the Tribunal gave weight to, that spoke of him as honest, reliable and trustworthy with charitable spirit. The Tribunal observed;
He has been involved in charitable fund-raising events for at least the last three years. It is evident that Mr Muhammad is keen to contribute to Australian society in any way he can.
Mr Muhammad has been completely open and honest about his past failures and that is a very strong indicator of good character. His background is not perfect but we do not require perfection of our citizens.
The Tribunal observed Mr Muhammad in the witness box, carefully assessed his manner and responses, and was comfortably satisfied that he was a person of good character..
The matter of Sauvao v Minister for Immigration and BorderProtection [2014] AATA 170 was a decision of the Honorable Mr Tamberlin QC, Deputy President where the decision under review was set aside and substituted with the decision that the visa should not be cancelled.
This was under a different section of the Act. The applicant in that case had committed a number of traffic offences (PCA’s and Drive whilst disqualified) and criminal offences including a glassing assault. Nevertheless, the Tribunal was impressed with the steps he had taken to overcome his alcohol problem and the support he was receiving and would continue to receive from his partner and her mother, who was a social worker. He had committed some 23 separate offences between 2004 and 2012.
The Tribunal noted that whilst the offences were very serious, with continued intervention and assistance from his family Mr Sauvao was a low risk of reoffending. The escalation in his offending behaviour was not extreme. Although he had not made any positive contributions to the Australian community as he worked only to support himself, he had very strong family links. They were deep and widespread and the Tribunal felt that factor should be given considerable weight. He also had a child, which was considered a very significant factor..
It is interesting to note that in that case it was argued by the respondent that there were no significant barriers to Mr Sauvao being returned to New Zealand. However, DP Tamberlin indicated at paragraph 89:
If removed from Australia to New Zealand, there would clearly be an adverse impact on the Applicant in establishing and maintaining himself in that country, particularly arising from the deprivation of family support and guidance which would assist in his rehabilitation. He has had no meaningful contact with New Zealand for more than a decade now. He is relatively young and in good health but with some physical problems. There are no substantial language or cultural barriers to his return but the absence of any social support in New Zealand is a significant factor in this case.
After considering all of the material, and in particular the best interests of the applicant’s son, DP Tamberlin concluded that the visa should not be cancelled.
The final case considered was the matter of Intesir v Minister for Immigration and Border Protection [2017] AATA 503. DP Constance affirmed the Minister’s decision in this case. He noted that in the period of just over 11 years between July 2004 and November 2015, Mr Intesir had managed to accumulate five PCAs; one drive while unlicensed; four drive whilst disqualified; one offence of driving a motor vehicle during a disqualification period; altering his driver’s licence in a way calculated to deceive; producing a licence in a manner calculated to deceive; and stating a false name and address.
He had been sentenced to community service, four periods of periodic detention and two periods of imprisonment.
Mr Intesir in some respects had committed similar offences to the applicant, except he had committed five offences of PCA, not one, and there were six offences of either driving whilst disqualified, or without a licence, or within that disqualification period, as opposed to four (although four is still very significant) and there were some not dissimilar offences of altering the licence.
It could be said that Mr Intesir’s offences were more serious than Mr Irani’s because there were more PCAs but nonetheless there are definite similarities to this case.
A recent psychiatric report said Mr Intesir impressed as a man regretful of his past actions and eager to demonstrate he could lead a respectable life. He had misused alcohol in the past, but had been recommended specialist counselling. Alcohol was an ongoing problem according to his clinical psychologist.
DP Constance considered that because of the nature of the convictions and the limited nature of the rehabilitation, and in particular the fact that his last conviction was only 18 months ago, there was a risk he would engage in criminal conduct in Australia. Accordingly, he found that Mr Intesir did not pass the character test.
There are some significant differences between Mr Intesir and the applicant’s circumstances. There were no children or other immediate family members to be considered in Intesir’s case. He had not been contributing to the community since he was in prison and in detention and, prior to that, he was not in regular employment and accordingly there was no impact on business interests.
The only other case referred to by counsel was the interlocutory proceedings in this case in October 2017 before DP Rayment. In those proceedings the applicant reiterated what he told this Tribunal in terms of his wife being legally blind and the difficulties she faces; how she could not cook for herself, or use a microwave. She could not leave the home without someone assisting her, which only occurred from time to time.
She was deeply distressed and the applicant was too because he worried about her and the health of his unborn child. DP Rayment noted that the applicant’s sister and mother-in-law refused to come to the applicant’s home whilst he was at Villawood and, that she had got used to the applicant caring for her constantly.
At paragraph 8 of his decision DP Rayment stated:
He has applied to this Tribunal to review the decision of the delegate to refuse to grant the Skilled visa. The refusal was based on “character” grounds, the grounds relating to driving offences of which the applicant has been convicted. No person was injured as a result of any of those driving offences, and no property was damaged. He has sold his car and cannot apply for a driver’s licence until January next year.
As already noted this Tribunal has now ascertained that the correct date is March 2019. The Deputy President continued:
On the face of it, his application for review has reasonable prospects of success. It will not be heard until December of this year, and it cannot be certain that it will be decided in that month.
If he succeeds in the review, his bridging visa will immediately entitle him to be removed from immigration detention while the Minister’s delegate considers aspects of his application for a Skilled visa that have not yet been dealt with.
He indicated at paragraph 10:
The applicant seems, on the evidence led before me, to constitute no risk to the community, and would submit to conditions to the effect that he utilize only public transport or taxis and drive no motor vehicles. I gather that he has been travelling for the whole of 2016 to 2017 by means of public transport and taxis, or driven by others.
The character test
With the above in mind, I shall deal with the issue of character, being mindful of how it is defined in subsection 501(6) of the Act.
I am also aware of how it is described in Annex A (Application of the character test) in Direction 65.
The case of Godley v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 774, deals with the issue of enduring moral qualities. It endorsed the proposition that it is not solely a matter of a person’s repute, fame or standing in the community. A person of ill repute by reason of past or present criminal or related conduct may, nonetheless, on objective examination at a later stage in their life, be described as a person of good character.
Lee J stated:
For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term ‘present criminal conduct’ is to be understood), becomes ‘past criminal conduct’ must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is a person not of good character.
Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
I will now consider the applicant’s ‘Past and present criminal conduct’ (paragraph 5.1 of Direction 65):
In considering whether a person is not of good character on the basis of past and present criminal conduct, the following factors are to be considered:
(a) The nature and severity of the criminal conduct.
Driving matters are serious and driving whilst disqualified does evidence a disregard for the law. I do take into account however that the PCA offence involved a very low reading. . That, in itself, is hardly indicia of good or bad character.
(b) The frequency of a person’s offending and whether there is any trend of increasing seriousness.
In the present case, while there is no trend of increasing seriousness, the applicant has committed four drive whilst disqualified over a period of six years (2010 – 2016).
(c) The cumulative effect of repeated offending.
In February 2016 the applicant’s criminal conduct culminated in him receiving a suspended jail sentence of 10 months. This was the most serious penalty the applicant had received to date.
(d) Any circumstances surrounding the criminal conduct, which may explain the conduct, such as may be evident from Judge’s comments, parole reports and other similar authority documents.
In the present case, it was suggested that the applicant suffered from Post-Traumatic Stress Disorder (PTSD). However, steps have been taken to overcome this diagnosis, which seem to have been very successful because in the last 12 months the applicant is actually able to take, on his own, public transport. This is a very significant factor in this case.
The fact the applicant has sold his car is of some relevance, although one could conceivably borrow a car. The fact that he can now take public transport is the most relevant factor.
(e) The conduct of the person since the most recent offence.
The most recent offence was committed about two years ago. This is not a terribly lengthy period of time although there were some not insignificant periods of time between 2010 and 2016 when the applicant did not commit any offences. There is no pattern of similar conduct since 2016.
(iv) Any pattern of continued or blatant disregard of contempt for the law.
There has been no conduct of this kind since the conviction in February 2016 but there has been, as indicated earlier, between 2010 and 2016.
(v) Any conduct which may indicate character reform.
The tribunal is satisfied after hearing all the evidence that the applicant is now well and truly aware of the ramifications of his conduct. The fact that he has now taken steps to overcome his PTSD is relevant. The fact that as at the date of this decision, he has spent approximately 58 days in detention which precluded him from attending the birth of his son, is a very significant deterrent were he to contemplate engaging in criminal conduct in the future. Additionally, the fact that he has a significant responsibility to look after his wife, who is blind, plus the obvious affection between the two, all indicate a maturing of the applicant.
I will now turn to paragraph 5.2 of Direction 65, ‘Past and present general conduct’:
a) In considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.
I have largely covered this earlier in my reasons.
The tribunal must also consider paragraph 6 of Direction 65, ‘Risk in regard to future conduct’ (section 501(6)(d)):
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501 (6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501 (6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501 (6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501 (6)(d) of the Act.
Paragraph 6.1 of Direction 65 ‘Risk of engaging in criminal conduct’ (section 501)(6)(d)(i), reads as follows:
A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.

The applicant has to satisfy the very strict legislative requirements listed above. I have to consider whether there is more than a minimal or remote chance that if he is allowed to remain in Australia, he would engage in the conduct specified (in his case it would almost certainly be drive whilst disqualified). That is the test I must apply.
This Tribunal believes the most preferable course to follow would be the one adopted, and the comments made, in relation to the case of Mr Miroslav Mlinar, who had six months remaining on his good behaviour bond.
The applicant has, until March of 2019, to see out his driver disqualification. There are really positive signs he will do so without reoffending. He has been able to take public transport for at least 12 months. He has a young child and wife he knows he must look after and whom he loves very dearly.
He has, seemingly, overcome his deep reluctance to use public transport.
Whilst there is evidence that he may have driven on other occasions in the past whilst disqualified ( e.g. to Queensland several years ago) there is nothing to indicate he has driven anywhere in 2016 and 2017.
His past record of driving is concerning but I think significant steps have been made to make any repetition of his past misconduct unlikely. The question is are those steps, at this stage, so significant that they would lead me to believe that there is only a minimal or remote chance that he is going to reoffend. Because if there is more than a minimal or remote chance he would engage in conduct specified under the Act, then it would seem this tribunal would not be able to say, at this point in time, he has necessarily passed the character test.
I find in all other respects, this is a man of good character. I find that he is a hard worker. I find he has made significant contributions to the Australian community and will continue to do so if allowed to remain. I find that he is a loving husband. He is obviously a very caring man. However, he has had this concerning propensity to drive whilst disqualified and, thereby, disregard the laws of Australia. Whilst it appears his problems were largely because of his PTSD and his aversion to public transport, any potential for reoffending is a serious issue in determining character issues.
At this point in time, I cannot say that there is a minimal or remote chance that he would reoffend. I would regard him, as a very low risk of reoffending, but whether I could go as far as to say it is remote or minimal, is a step I cannot take at this point in time.
Certainly were we to re-examine the applicant’s case in even 6 months time, it may be that I would find differently. If he had not reoffended by March of 2019, when he gets his license back, I would certainly be persuaded to change my position, but, at this stage, I just think not enough time has passed.
Accordingly, whilst I do regard him in all other aspects to be a fine man, I find that he does not pass the character test as set out in subsections 501(6)(d)(i).at this time.
Primary Considerations
The Tribunal now proceeds to consider the primary considerations (Direction 65, paragraph 11). These are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
As an aside, this Tribunal was initially concerned that the Minister’s delegate had only considered these primary considerations when making the decision and not the other considerations. However, it is not particularly material in that I have to look at this case afresh by standing in the shoes of the decision maker.
(a)Protection of the Australian community from criminal or other serious conduct
In dealing with this consideration I have to have regard to the principle that the Government is committed to protecting our community from harm as a result of criminal activity or other serious conduct:
There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.
I have to 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.
I have to look at the nature and seriousness of the conduct and:
(1) In considering the nature and seriousness of the non-citizen’s offending or other serious conduct to date, decision-makers must have regard to:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously.
That is not applicable here.
(b) The principle that crimes committed against vulnerable members of the community (minors, elderly and disabled) or government representatives or officials are serious.
That is not applicable here.
(c) Where the non-citizen is in Australia, that a crime committed was in immigration detention or during an escape.
That is not applicable here.
(d) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass the subject limb of a character test is or is not of good character under section 501(6)(c) is considered to be serious.
I found earlier that the applicant does not pass the character test, and that his offending conduct is considered serious.
(e) The sentence imposed by the courts for a crime or crimes.
Whilst the applicant has received a suspended jail sentence, he has not served a term of imprisonment. That is of relevance.
(f) The frequency of the non-citizen’s offending and whether this is any trend of increasing seriousness.
The applicant’s offending could be characterised as frequent. He committed four drive whilst suspended offences and one PCA between 2010 and 2016. However, it is equally evident that there is no increasing trend of seriousness.
(g) The cumulative effect of repeated offending;
I have previously mentioned that the applicant received a suspended sentence on the last occasion he was before the courts.
(h) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
The only false information he has provided to the department are his four immigration cards which asked him to specify if he had any criminal convictions and I have already explained that his explanation as to why he answered “no” is not an unreasonable one in all the circumstances.
He has not committed any offences in any other country.
I have to look at the risk to the Australian community should he commit further offences and whether he is going to represent an unacceptable risk of harm to individuals groups or institutions.
I have to look at the Australian community’s tolerance for any risk of future harm which becomes lower as the seriousness of potential harm increases, particularly so if the harm is so serious that any likelihood that it is repeated may be unacceptable. Certain violent offences, especially those involving firearms may fall into this category, for example.
To date, apart from one instance of speeding, there is no real indication of any erratic driving by the applicant. I think the risk to the Australian community, even should he reoffend, is minimal.
Decision makers also have to have regard to the principle that Australia has a low tolerance of any criminal or other serious conduct reflecting that there should be no expectation that people should be allowed to come or remain here. I have had regard to the nature of the harm should the applicant reoffend above.
The tribunal has to next look at the likelihood of the applicant engaging in further serious conduct. I must take into account information and evidence from independent authorities and sources on the likelihood of his reoffending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence and the duration and intended length of stay in Australia. I should consider the risk of harm in the context of the purpose of the intended stay and the type of the visa being applied for, including whether there are strong or compassionate grounds for granting a short-term stay.
The information from independent and authoritative sources, mainly reports from doctors, psychiatrists and health professionals, do point to a decreased likelihood of reoffending. There is significant evidence of rehabilitation, in particular that the applicant has overcome his PTSD which may well have significantly contributed to his offending conduct. He has been in the community all the time, only recently going into immigration detention. Since his last court appearance in February 2016 (which related to an offence in late 2015) he has not reoffended.
Whilst I have found that insufficient time has passed in all the circumstances to say he is of good character presently, I have so found reluctantly. I can certainly say, looking at all the evidence, there is only a low risk of him reoffending.
Certainly there is significant evidence of rehabilitation and he has spent a lot of time in the community, albeit perhaps not quite enough for the purposes of satisfying the character test.
The applicant wants to stay here and make a contribution to the Australian community and he has already made a contribution through his business.
.In terms of this particular criteria, I reject the assertion by the respondent that it strongly weighs in favour of the applicant being deported. I have set out above my reasons for this finding.
(b)The best interests of minor children in Australia.
This primary consideration weighs very much in favour of the applicant remaining in Australia. He clearly loves his little boy. Because his wife is blind she has trouble looking after the child on her own. Plainly, they are a family who will thrive in Australia but who may suffer from impediments if they are forced to relocate to another country.
Further, they have a good standard of living here and there is no evidence to indicate that they would necessarily achieve the same or similar standard of living in India, where he would be deported to (or indeed if they managed to gain entry to any other country in the world.
Whilst he has only been a father for about two weeks, it is a parental relationship. It is a relationship where, clearly, he gets a great deal of joy from his little child and that seems to have matured him. I have no reason to disbelieve that he realizes his responsibilities as a father now and it is up to him to show that he can live up to those responsibilities. I believe he is likely to play a most positive role. The child is nowhere near 18. The child is about two weeks old. The child needs him because the child’s mother is unable to adequately look after the little boy because of her health problems and there are no other family members who can or will do so..
His prior conduct, namely his four offences of drive whilst disqualified would not have any effect on the little boy
I must also consider the likely effect that separation from the applicant would have on his child, taking into account his ability to maintain contact in other ways. If, for example, he were to go back to India and his wife and child were to stay here, then the contact would be limited and that, clearly, as can be seen in a number of cases that had been before the tribunal is not an optimum situation. It is a significant factor that whilst one can have contact through other means, it is not the same as direct contact.
There are no other available father figures for the child. The applicant’s family is not involved in the child’s life, nor is his wife’s family.
There is no evidence that the applicant has abused or neglected his child. The child has never suffered or experienced any trauma as a result of his conduct.
All the evidence points very strongly in favour of the best interests of the child and indeed his family being served by the applicant remaining in Australia.
(c)Expectations of the Australian community
I must now consider the expectations of the Australian community.
The Australian community expects non-citizens to obey Australian law and where that has been breached or there is an unacceptable risk of a breach it may be appropriate to refuse the visa application of such a person. Visa refusal may be appropriate simply because of the nature of the character concerns or the offences are such that the Australian community would expect the visa would not to be granted and, of course, decision-makers should have due regard to the Government’s views on this respect.
When looking at these criteria I start from the premise, that the Australian community would be aware of all the evidence and facts that I am aware of. If the Australian community was limited to the applicant’s police record and the fact sheets tendered in court, they certainly would have trouble making an objective view because they would not be in possession of all the facts.
If the applicant had been convicted of offences involving violence, drug offences ,serious offences of dishonesty or had been jailed for 12 months or more for such or some other serious offences, I might have formed a different opinion.
This man, however, has been charged with four serious breaches of the traffic law. He has been charged with driving whilst disqualified.
I think there would be very few people in the Australian community who would expect this man, in the circumstances, to be deported because of traffic offences which are at the lower end of seriousness; especially when one also considers that this man is responsible for looking after a blind wife and a 2 week old son as well as 40 employees, 20 of whom have joined the business he runs over the last 2 years, and many of whom he now gives on the job training to in the kitchen at his restaurant. It is clear that he is a very hands-on boss.
Further, there is no evidence to indicate that anything the applicant has said in relation to the number of his employees in his two businesses is wrong. He employs mainly young Australians. I think his oldest employees are just over 30. His 7-11 franchise only needs 10 people, but he has built up the restaurant business from about 8 or 9 employees in 2016 to the current 30.
There is a risk that these businesses might close down if he were to leave. The evidence was that his wife simply could not run them because of her ailments. She would probably have to sell them. There would be all sorts of possible consequences flowing from such a consequence, which would, indeed, have flow on effects to such other issues as, the best interests of his son and, the considerations, especially paragraph 7, of Direction 65 which states:
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 in the context of determining whether a non-citizen visa should be cancelled, or their visa application refused.
Employing 40 people in 2 successful businesses is indicative of a positive contribution to the Australian community.
Other considerations
There are 4 other considerations I must look at for visa applicants. I have to consider international non-refoulement obligations; impact on family members; impact on victims; and impact on Australian business interests.
I do not consider there to be any non-refoulement obligations in this case.
In relation to impact on family members, I have already covered this in some detail above. I find it would be significant for the reasons I have already given. This consideration would strongly weigh in favour of him staying.
One could also include under this heading the effect on the wider community, especially his employees. If he was deported and his businesses closed most of his employees might get jobs, but the cost to the Australian taxpayer would still be significant; namely, the cost of paying unemployment relief, not to mention income and other taxes to the Commonwealth forgone as a result of the closed businesses.
Overall, in economic terms and the effect his deportation might have on family members and indeed, Australia and possibly Australian business interests, it would be a very real positive if the applicant stays and continues running his businesses.
Impact on victims is not a relevant consideration in this matter.
Finally, I turn to the impact on Australian business interests.
I have to an extent covered any impact on Australian business interests above, particularly in terms of the consequential impact on family members, and especially his child. This is not a case where a visa refusal would significantly compromise the delivery of a major project but conceivably it may affect the delivery of an important service in Australia. If one considers running a 7-11 store selling petrol and running a restaurant constitute providing an important service (transport and food, entertainment ) to Australia , albeit on a small scale, then this becomes a relevant consideration. .
On a whole, the other considerations, in particular the impact on family members and to an extent , on Australian business interests, strongly favour the applicant. International non-refoulement obligations and impact on victims are not relevant.
Conclusion
In all of the circumstances, when one looks at the primary and the other considerations, there is a very strong inference from the evidence that it in his interests, his family’s interest and, indeed, might I say Australia’s interests that this man be given another go.
What he has done was incredibly foolish. He has shown a blatant disregard for the law. It is reflected in my comments in relation to how he does not pass, at this stage, the necessary character requirements but certainly when one looks at Direction 65 and the primary considerations, and the other considerations, on balance I find that he should be permitted to remain in this country.
Accordingly, the order of this tribunal will be that the decision of the Minister’s delegate d be set aside and the delegate’s decision be remitted with a direction that the visa applied for not be refused under section 501 of the Act.
As was indicated to counsel at the conclusion of the hearing, I would also expect for that order to be carried out as soon as possible because for the reasons I have indicated already, the sooner this man gets back to his family, looks after his wife and child and looks after those 40 employees and, hopefully, grows his business, the better it is going to be for everyone.
I close my comments with some observations I made to counsel for the applicant.
Firstly, He has until March 2019 to prove that he is but a remote risk of reoffending. Secondly, if he were to be so irresponsible as to breach the law again, then clearly he would be putting his future and that of his family very much at risk. I think he appreciates that but it needs be reinforced to him and also the positive, that if nothing goes wrong between now and March 2019, he is going to get his license back . When that happens, I have every confidence that it is going to be highly unlikely (and certainly a very remote possibility) that the Australian community are going to see him before a court again and the community can look forward to the applicant and his wife growing on the current and not insignificant positive contribution they are currently making to this country.

I certify that the preceding 205 (two hundred and five) paragraphs are a true copy of the reasons for the decision herein of Bill Stefaniak AM RFD, Senior Member

...........................[sgd].............................................
Associate
Dated: 22 December 2017

Date(s) of hearing: 4, 5 & 7 December 2017

Solicitors for the Applicant: Mr M Jones, Parish Patience Immigration Lawyers

Solicitors for the Respondent: Mr A Keevers, Sparke Helmore

[2017] AATA 3051

7 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction

Proportionality

Date(s) of hearing:	4, 5 & 7 December 2017
Solicitors for the Applicant:	Mr M Jones, Parish Patience Immigration Lawyers
Solicitors for the Respondent:	Mr A Keevers, Sparke Helmore