Lim and Minister for Immigration and Border Protection (Migration)
[2016] AATA 692
•8 September 2016
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No: 2016/3204
General Division )
Re: Yoong Xiang Lim
Applicant
And: Minister for Immigration and Border Protection
Respondent
CORRIGENDUM
TRIBUNAL: Deputy President Dr P McDermott RFD
DATE: 9 September 2016
PLACE: Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
In paragraph 40 of the decision the third sentence should read:
“In my opinion the first primary consideration slightly favours the refusal of the applicant’s visa.”
In paragraph 44 of the decision the fourth sentence should read:
“I consider that the expectations of the Australian community only weighs slightly in favour of refusing the applicant’s visa because the applicant on the most recent occasion has disclosed the existence of his convictions before his entry into Australia.”
...................................[sgd].............................
Deputy President
Lim and Minister for Immigration and Border Protection (Migration) [2016] AATA 692 (8 September 2016)
Division
GENERAL DIVISION
File Number
2016/3204
Re
Yoong Xiang Lim
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
Decision
Tribunal Deputy President Dr P McDermott RFD
Date 8 September 2016 Place Brisbane The decision under review is set aside. In substitution, the Tribunal decides that the discretion in s 501(1) of the Migration Act 1958 (Cth) to refuse the applicant’s visa on character grounds should not be exercised.
...............................[sgd].........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
MIGRATION – application for visa refused on character grounds – applicant does not pass the character test – sentenced to two terms of imprisonment totalling 12 months – conduct to date not highly serious – low risk to Australian community – expectations of Australian community met – impact on Australian business interests relevant – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 500, 501
Registration of Criminals Act (Singapore, cap 268, 1985 rev ed)
SECONDARY MATERIALS
Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
8 September 2016
introduction
This is an application for a review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”) dated 17 June 2016 to refuse to grant Mr Yoong Xiang Lim (“the applicant”) a Regional Employer Nomination (Permanent) (Class RN) visa pursuant to s 501(1) of the Migration Act 1958 (Cth) (“the Act”).[1] This Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(b) of the Act.
[1] Exhibit A, G Documents, G2-G3.
background
The applicant is a 32 year old citizen of Singapore.[2] In 1999 the applicant visited Australia for three days.[3] In 2009 the applicant visited Australia for approximately two and a half months.[4]
[2] Exhibit A, G Documents, G6.
[3] Exhibit A, G Documents, G4.
[4] Ibid.
Later in 2009 the applicant spent two months in Australia on a student visa.[5] In 2011 he spent a further week in Australia on a student visa.[6]
[5] Ibid.
[6] Ibid.
Between 13 November 2013 and 13 February 2014 the applicant stayed in Australia on a visitor visa.[7] Between 8 March 2014 and 14 March 2015 the applicant again stayed in Australia on a visitor visa.[8] On 1 May 2015 the applicant entered Australia on a bridging visa.
[7] Ibid.
[8] Ibid.
On 3 June 2014 the applicant lodged an application for a Regional Employer Nomination (Permanent) (Class RN) visa (“the visa”). He was sponsored by his employer, Calypso Productions Pty Ltd (“Calypso Productions”).[9]
[9] Exhibit A, G Documents, G6.
On 14 April 2015 the Department of Immigration and Border Protection (“the Department”) notified the applicant of an intention to consider refusing to grant him the visa under s 501(1) of the Act.[10]
[10] Exhibit A, G Documents, G7.
On 13 May 2015 the applicant’s migration agent lodged a request that the delegate exercise their discretion not to refuse to grant the applicant the visa.[11] On 17 June 2016 the Department notified the applicant of the delegate’s decision to refuse to grant him the visa under s 501(1) of the Act.[12]
character test
[11] Exhibit A, G Documents, G19.
[12] Ibid.
Substantial criminal record
Section 501(1) of the Act provides that the respondent may refuse to grant a visa to a person if the person does not pass the character test. Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record.
Section 501(7)(d) of the Act provides that a person has a “substantial criminal record” if he or she has been sentenced to multiple terms of imprisonment, where the total of those terms is 12 months or more.
On 5 June 2012 the applicant was sentenced to two six month terms of imprisonment to be served concurrently.[13] By virtue of the operation of s 501(7A) of the Act the total of the terms is 12 months. Therefore, he has a substantial criminal record for the purposes of s 501(7)(d) of the Act.
[13] Exhibit A, G Documents, G9.
MINISTERIAL DIRECTION
Section 499 of the Act empowers the respondent to give written directions about the performance of functions and the exercise of powers under the Act. The effect of this section is that the Tribunal must comply with Ministerial Direction No 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) (“the Direction”). The Direction commenced operation on 22 December 2014 and remains in force.
The Preamble of the Direction provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. An objective of the Direction is to provide a framework within which decision-makers approach their decision of whether to exercise the discretion to refuse to grant a visa under s 501 of the Act.[14]
[14] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [6.1(4)].
The Preamble espouses seven principles which provide a framework within which decision-makers should approach their specific task:[15]
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, 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 to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[15] Ibid at [6.3].
Paragraph 8 of the Direction provides:
…
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
In deciding whether to refuse the applicant’s application for a visa, paragraph 11(1) of the Direction provides the following are primary considerations:
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 there are no minor children in Australia, I will consider the first and third primary considerations in turn.
Primary consideration A – The protection of the Australian community from criminal or other serious conduct
Paragraph 11.1(1) of the Direction provides:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.
Paragraph 9.1(2) of the Direction provides that decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the applicant’s conduct to date
On 27 December 2009 the applicant was charged with four offences in Singapore. The first charge was “cheating” which involved a shoplifting incident where the applicant placed additional clothing items into packages and then purchased the packages.[16] The second and third charges were possession of controlled drugs, namely, one tablet containing Nimetazepam and 0.35 grams of vegetable matter containing cannabinol and tetrahydrocannabinal.[17] The fourth charge was consumption 11-Nor-delta-9-tetrahydrocannibinol-9-carboxylic acid.[18]
[16] Exhibit A, G Documents, G19.
[17] Exhibit A, G Documents, G11-12.
[18] Exhibit A, G Documents, G13.
The applicant stated in evidence that he was depressed at the time of the offences as a result of a combination of the passing away of his pet dog and relationship problems with his partner. He described himself as being “highly intoxicated” and “in a daze” when he shoplifted.
There is evidence before the Tribunal that the applicant was suffering from major depressive disorder and anxiety at this time.[19] Dr Tan, psychiatrist, reported on 21 January 2010 that the applicant had used cannabis to provide what he believed was temporary relief from his depressed mood and anxiety.[20]
[19] Exhibit A, G Documents, G14 at p. 55.
[20] Ibid.
It is clear from the court records that the shoplifting offence occurred on the same day as the offence of shoplifting was committed when the applicant was under the influence of drugs. It was not pre-meditated nor was it sophisticated. There is evidence that the applicant was aware that he was being observed at the time of the offence.[21]
[21] Ibid.
The court records disclose that on 28 July 2010 the applicant pleaded guilty to the first three charges and charge four was taken into consideration in his sentencing.[22] On 31 December 2010 the applicant was sentenced to 36 months of supervised probation.[23] Among other the conditions, the applicant was required to undergo regular urine tests.[24] The applicant stated that he was required to undergo urine tests twice a week at the beginning of his probation and that the frequency eventually declined to once a week.
[22] Exhibit A, G Documents, G9.
[23] Ibid.
[24] Ibid.
In 2012 the applicant tested positive to cannabis consumption. The applicant claims that he did not consume cannabis but rather the positive reading was the result of being in a motor vehicle for a period of one to two hours with three other individuals who were smoking cannabis. This explanation does not materially mitigate the seriousness of the breach of the probation order.
On 5 June 2012 action was taken for the applicant’s breach of the probation order. The applicant was sentenced to two six month terms of imprisonment to be served concurrently. The applicant was also fined $700.[25]
[25] Ibid.
The applicant contends that the seriousness of his conduct is “very low by Australian standards”. Rather the sentences imposed on the applicant should be considered in light of what is “a radically different approach to the use and possession of cannabis” taken by the Singaporean justice system. He contends that it was extremely unlikely that he would have been sentenced to a term of imprisonment had he committed those offences in Australia. In making this submission the applicant relied upon the expert report of an accredited specialist in criminal law, Mr Glenn Cranny.[26]
[26] Exhibit F, Report of Mr G Cranny dated 1 August 2016 with attachments.
The respondent contends that drug-related offences are serious on account of the harm that drugs have on the people who use them and the costs to health and law enforcement resources.
I accept the applicant’s contention that the offences are not violent or sexual crimes. They were not committed against vulnerable members of the community. Nor were they committed against government representatives or officials. There is no evidence of the applicant committing offences while in immigration detention.
Paragraph 11.1.1(h) of the Direction requires me to consider whether the applicant has provided false or misleading information to the Department. The applicant has not disclosed his criminal convictions to the Department on three occasions.
On 27 February 2011 the applicant completed an Australian incoming passenger card. The applicant indicated on the card that he did not have any criminal convictions.[27] The applicant asserts that he was given legal advice by a lawyer in Singapore that no conviction was recorded and that he consequently was not required to disclose the offence.[28]
[27] Exhibit A, G Documents, G5 at p. 25.
[28] Exhibit D, Statement of Yoong Xiang Lim dated 1 August 2016 at p. 4.
On 2 November 2013 the applicant completed an Australian incoming passenger card and again indicated on the card that he did not have any criminal convictions.[29] This was after the applicant had been convicted for breaching his probation order and sentenced to a term of imprisonment. In his statement dated 1 August 2016 the applicant stated that he did not consider that the incoming passenger card was “a significant document” and therefore he was not required to “disclose such sensitive information”.[30] Another reason that he stated was he was tired from the flight and that he “wanted to get out of the airport as soon as possible”.[31]
[29] Exhibit A, G Documents, G5 at p. 24.
[30] Exhibit D, Statement of Yoong Xiang Lim dated 1 August 2016 at p. 5.
[31] Ibid.
On 7 March 2014 the applicant completed an Australian incoming passenger card and again indicated on the card that he did not have any criminal convictions.[32] The applicant stated that he wanted a “fresh start” and indicated that he did not have any criminal convictions due to concerns that he would be barred from entering Australia. The applicant also stated that he “thought it would be best to be consistent with my previous answers”.[33]
[32] Exhibit A, G Documents, G5 at p. 23.
[33] Exhibit D, Statement of Yoong Xiang Lim dated 1 August 2016 at p. 5.
The respondent highlights that the making of a false statement to the Department in connection with the person’s entry or immigration clearance into Australia is an offence under s 234(1)(c) of the Act.
The applicant asserted at the hearing that he would have candidly completed the incoming passenger card had he understood the consequences of failing to comply with disclosure requirements. Complying with disclosure requirements only to avoid reprisal for failing to do so is self-serving and is not reflective of good character.
On 1 May 2015 the applicant completed an Australian incoming passenger card and on that occasion disclosed that he had criminal convictions.[34] The applicant stated that the customs officer allowed the applicant to enter Australia after speaking with him. Upon his entry to Australia the applicant disclosed his drug offences to that officer. It is apparent that the officer allowed the applicant to enter Australia after making enquiries with the Singapore authorities as that officer was also aware of the shoplifting conviction.
[34] Exhibit G, Incoming passenger card dated 1 May 2015.
In having regard to paragraph 11.1.1(h) of the Direction I am mindful that the applicant had disclosed that he had convictions before his last entry into Australia. In making that disclosure he had been honest on that occasion. I consider that the applicant is now more mature and aware of his responsibilities.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 11.1.2(1) of the Direction provides:
In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
I am not satisfied on the evidence before me that the applicant represents an unacceptable harm to individuals, groups or institutions in the Australian community. The applicant has not been convicted of any offences since breaching his probation order. He frankly admitted that he has consumed cannabis since then. However, he expresses remorse for his offences and he states that he does not intend to reoffend.
The applicant has not been charged or committed of an offence in Australia. The Departmental officer who advised the delegate recorded: [35]
“Mr Lim has also sought help for his anxiety and depression related issues and has continued with his education in order to secure a successful future. … In acknowledging Mr Lim’s remorse are assurance not to commit any further criminal offences and in considering available objective information regarding the likelihood of him reoffending, you are free to find Mr Lim’s likelihood of reoffending to be low”.
[35] Exhibit A, G Documents, G2.
I agree with that Departmental assessment. I have had regard to the fact that on 22 January 2015 the Singapore Police Force issued a certificate of clearance to the applicant in which it is stated that he “has no criminal record prior to the date of issuance of this certificate”.[36] In my opinion the first primary consideration slightly favours the non-revocation of the mandatory cancellation of the applicant’s visa.
[36] Exhibit A, G Documents, G8.
Primary Consideration 3 - Expectations of the Australian community
Paragraph 11.3(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws.
The respondent contends that the applicant’s breach of the probation order demonstrates a lack of respect for Singapore’s law enforcement framework. However, I have also taken into account that on 22 January 2015 the applicant was issued with a certificate of clearance by the Singapore Police. Paragraph 6.3 of the Direction requires me to consider that there is an expectation that not-citizens will respect Australia’s law enforcement framework.
My assessment is that the applicant would obey Australian laws. Having regard to the fact that he has received a certificate clearance from Singapore Police and his rehabilitation I consider that the Australian community would expect him to be allowed to remain in Australia.
The applicant has not been convicted of any offences in Australia.[37] The Australian community would expect that every person who enters Australia would truthfully complete their incoming passenger cards. The applicant complied with this requirement when he last entered Australia, although it is a matter of concern that he has not disclosed his conviction on previous occasions for which he has given some explanation. I consider that the expectations of the Australian community weighs slightly in favour of not revoking the mandatory cancellation of the applicant’s visa because the applicant on the most recent occasion has disclosed the existence of his convictions before his entry into Australia.
[37] Exhibit A, G Documents, G15.
other considerations
Paragraph 12 of the Direction provides a non-exhaustive list of other considerations which must be taken into account. I will consider each of these in turn.
There are no relevant international non-refoulement obligations.
The applicant does not have any immediate family members in Australia.
There is no evidence of victims of the applicant’s previous criminal behaviour based within Australia.
The only relevant other consideration is the impact on Australian business interests if the applicant’s visa application is refused. On 3 April 2014 the applicant entered into an employment agreement with Calypso Productions.
Calypso Productions produces underwater and above water photographs and films which are sold to tourists. The Manager Director and owner of Calypso Productions, Ms Lisa Conyers, stated in evidence that the company generated $1.4 million in revenue over the 2015/2016 financial year. Calypso Productions currently employs 12 staff excluding the applicant. Ms Conyers described Calypso Productions as “one of the two giants of underwater photography” in Cairns.
The tourism industry forms part of the Australian economy. Ms Conyers gave evidence that the 80 per cent of the working population in Cairns was employed in the tourism industry.
In relation to the second requirement I will consider what impact the refusal of the applicant’s visa application would have on Calypso Productions. The applicant is employed as an Imaging Information and Marketing Manager. Both he and Ms Conyers gave evidence about his tasks at Calypso Productions. The employment agreement was also in evidence which contained a list of the applicant’s key tasks.[38] These tasks included underwater and above water photography, sales, managing online databases, training, and liaising with stakeholders.
[38] Exhibit E, Statement of Lisa Conyers dated 8 August 2016.
Ms Conyers stated that between 60 to 80 per cent of Calypso Production’s clientele were Chinese. She described the applicant as being a significant asset to the company in being able to communicate with the Chinese tourists. First, in terms of being multilingual. Secondly, in terms of having strong communication and interpersonal skills. She indicated that the applicant was able to facilitate a positive experience for Chinese tourists. She also indicated that he was able to “bridge the gap” that had previously existed between Chinese tourists and tour guides.
When asked how Calypso Productions operated without the applicant, Ms Conyers stated that she was required to either outsource translating services or proceed without them. She described the company as “managing” but “not sustainable” as it currently is without the applicant. She also stated that the business would continue trading without the applicant but would not continue to improve as it had done in the past. She quantified the loss in revenue of the applicant’s absence as being $500 per day.[39]
[39] Exhibit E, Statement of Lisa Conyers dated 1 August 2016.
Mrs Conyers estimated that it would take at least one year to replace the applicant.[40] She stated that it would be difficult to replace the applicant for several reasons. First, it is difficult to find candidates who are fluent in both English and Mandarin. Secondly, it is difficult to find candidates with the interpersonal skills of the applicant. Thirdly, it takes approximately six months to train someone new for the role.
[40] Ibid.
In relation to necessary qualifications, the applicant stated that he applies his divemaster certificate in completing solo diving tasks. Ms Conyers stated that the applicant’s Bachelor of Science degree was not a prerequisite to the position. However, she did say that his scientific education was useful in helping to diagnose coral.
I am satisfied that the refusal of the applicant’s visa has had an adverse impact on Calypso Production’s interests. The applicant is a valued member of staff at the company and it would take some time and expense to recruit and train another person to replace him. I am satisfied that the refusal of the applicant’s visa application would significantly compromise operations at Calypso Productions for some period of time.
For these reasons I attach some weight to the impact on Australian business interests.
conclusion
I am satisfied that the discretion to refuse the visa on character grounds should not be exercised. I have considered each of the primary and other considerations as they relate to the applicant’s application.
The first primary consideration weighs slightly against the applicant. The applicant’s criminal offending is serious in that it resulted in him being sentenced to two six month terms of imprisonment. However, I am mindful that the offences are not violent or sexual crimes and were not committed against vulnerable persons or government officials. It was serious that the applicant failed to comply with a probation order but he now has a certificate of clearance from the Singapore Police which was issued under local spent convictions legislation.[41] I have relied upon a reference from Dr Antonis Giannakakis who is a post-doctoral research fellow at the Bioinformatics Institute who has stated that the applicant has grown from his experiences.[42]
[41] Registration of Criminals Act (Singapore, cap 268, 1985 rev ed).
[42] Exhibit A, G Documents, G25.
I do not accept the contention of the respondent that there remains a real risk of the applicant reoffending. I consider that the risk of the applicant reoffending is low. He has not been charged or convicted of any offences while in Australia. The seriousness of potential harm should the applicant reoffend is also low. I agree with the assessment of the Departmental officer who made a recommendation that it was open to the delegate to find that the applicant’s risk of reoffending is low.[43] During the hearing the applicant was made aware by his representative of the consequences if a visa was cancelled.
[43] Exhibit A, G Documents, G2.
The second primary consideration has no relevance as there are no minor children in Australia affected by the decision.
I have already indicated that the third primary consideration weighs slightly against the applicant. The applicant’s failure to disclose his criminal convictions on three incoming passenger cards is a matter of some concern. He asserts that he was relying on legal advice on the first occasion. His explanations for failing to disclose his criminal convictions on the second and third occasions are unsatisfactory. I have, however, given him credit for his candour before the Tribunal even where an answer may be adverse to his interests. I have also taken into account that he did disclose that he had criminal convictions when he completed an Australian incoming passenger card on 1 May 2015.[44]
[44] Exhibit G, Incoming passenger card dated 1 May 2015.
The only relevant other consideration is the impact on Australian business. While there is no evidence that the business that is conducted by Calypso Productions is concerned with “the delivery of a major project, or delivery of an important service to Australia” in terms of paragraph 12.4 of the Direction, the business is nonetheless an significant business. In view of paragraph 12 which indicates that the other considerations are not limited to those in the Direction, I consider that I am able to consider the impact of the decision to refuse the visa on the Australian business. This consideration weighs most strongly in the applicant’s favour. Calypso Productions would certainly be adversely affected if the applicant’s visa application was refused. His employer describes his role as being “essential to Calypso Production’s increased productivity”.[45] It would take approximately a year to replace the applicant.
[45] Exhibit E, Statement of Lisa Conyers dated 1 August 2016.
While paragraph 8(4) of Direction provides that primary considerations should generally be attributed greater weight than the other considerations, in this instance the impact on an Australian business should in my assessment outweigh primary considerations one and three. I have made this assessment because there is evidence that Calypso Productions has been greatly assisted by the unique skill-set of the applicant who has an advanced professional understanding of underwater digital SLR photography. He has undertaken marine science studies in Australia and is a qualified dive instructor. I accept the evidence of Ms Conyers that it would be difficult to replace the applicant. The fact that she travelled from Cairns to Brisbane in support of this application is indicative of the worth of the applicant as an employee.
The importance of the attendance of the applicant at the hearing of an application of this nature has recently been emphasised by this Tribunal.[46] At the initial directions hearing I received an assurance that the applicant who was detained in Brisbane would attend the hearing. When the Tribunal was advised that the applicant would be transferred to Christmas Island I convened an urgent directions hearing because his transfer would, in my opinion, place a difficulty in the path of the legal representatives of the applicant who are based in Sydney. This Tribunal is required to ensure that every party to a proceeding is given a reasonable opportunity to present his or her case and to inspect any documents to which the Tribunal proposes to have regard to in reaching a decision in the proceeding.[47] Fortunately, the representatives of the respondent were able to ensure the attendance of the applicant in person on this occasion.
[46] Labi and Minister for Immigration and Border Protection [2016] AATA 316 at [4]-[16] per Deputy President McCabe.
[47] Administrative Appeals Tribunal Act 1975 (Cth) s 39(1).
decision
The decision under review is set aside. In substitution, the Tribunal decides that the discretion in s 501(1) of the Migration Act 1958 (Cth) to refuse the applicant’s visa on character grounds should not be exercised.
I certify that the preceding 67 (sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ..............................[sgd]..........................................
Associate
Dated 8 September 2016
Date of hearing 12 August 2016 Solicitors for the Applicant Mr D Prince, Kinslor Prince Lawyers Solicitors for the Respondent Ms L Christopher, Clayton Utz
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