MARK ANTHONY WILLIAMS and MINISTER FOR IMMIGRATION AND CITIZENSHIP - [2012] AATA 223

[2012] AATA 223

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2012/0107

Re

MARK ANTHONY WILLIAMS

APPLICANT

And

MINISTER FOR IMMIGRATION AND CITIZENSHIP

RESPONDENT

DECISION

Tribunal
Deputy President S D Hotop

Date 16 March 2012

Date of written reasons
18 April 2012

Place Perth
The decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that the applicant's application for an Employer Nomination (Residence) (Class BW) visa is not to be refused under section 501(1) of the Migration Act 1958 (Cth).
.................[sgd]..............................
S D Hotop
Deputy President

CATCHWORDS
IMMIGRATION AND CITIZENSHIP - visa - refusal to grant visa - applicant a citizen of Ireland - applicant first arrived in Australia in March 2009 - applicant convicted of offences in Ireland and in Australia - applicant fined – applicant not sentenced to imprisonment – applicant passes character test - discretion to refuse to grant visa not enlivened - if discretion were enlivened consideration of primary considerations and other relevant considerations - totality of considerations on balance weighs against refusal to grant visa - discretion to refuse to grant visa should not be exercised - decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 501(1) and s 501(6)

Direction [no 41] - Visa refusal and cancellation under s 501

CASES
Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321

Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390

REASONS FOR DECISION
Deputy President S D Hotop
18 April 2012
Introduction

On 10 January 2012 Mark Anthony Williams (“the applicant”) applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 4 January 2012, refusing his application for an Employer Nomination (Residence) (Class BW) visa (“the visa”). The delegate’s decision was made under s 501(1) of the Migration Act 1958 (Cth) (“the Act”).
On 16 March 2012, the Tribunal made a decision under s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) whereby the abovementioned decision of a delegate of the respondent, dated 4 January 2012, was set aside and the matter was remitted to the respondent for reconsideration in accordance with the direction that the applicant’s application for the visa is not to be refused under s 501(1) of the Act. In accordance with s 43(2) of the AAT Act, the Tribunal gave reasons orally for that decision.
By letter dated 21 March 2012 (received by the Tribunal on 22 March 2012), the respondent, pursuant to s 43(2A) of the AAT Act, requested the Tribunal to provide a statement in writing of the reasons for its decision of 16 March 2012. The Tribunal’s statement of reasons for its decision of 16 March 2012 follows.
The Factual Background
The applicant was born in September 1987 in Ireland and is a citizen of the Republic of Ireland.
The applicant first arrived in Australia on 2 March 2009 as the holder of a Working Holiday visa. Apart from a visit to Ireland for one month in August-September 2009, the applicant has remained in Australia from 2 March 2009.
On 28 February 2011 the applicant lodged with the Department of Immigration and Citizenship (“Department”) an application for the visa.
On 4 January 2012 a delegate of the respondent decided to refuse to grant the visa to the applicant pursuant to s 501(1) of the Act.
The Relevant Legislation
Section 501(1) of the Act provides:
“ The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.”
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. Section 501(6) provides:
“ For the purposes of this section, a person does not pass the character test if:
(a)     the person has a substantial criminal record (as defined by subsection (7)); or
(b)the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or
(c)     having regard to either or both of the following:
(i)        the person’s past and present criminal conduct;
(ii)       the person’s past and present general conduct;
the person is not of good character; or
(d)in the event the person were allowed to enter or to remain Australia, there is a significant risk that the person would:
(i)        engage in criminal conduct in Australia; or
(ii)       harass, molest, intimidate or stalk another person in Australia; or
(iii)      vilify a segment of the Australian community; or
(iv)incite discord in the Australian community or in a segment of that community; or
(v)represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Otherwise, the person passes the character test.”
The Ministerial Direction
In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, “Direction [no 41] – Visa refusal and cancellation under s 501” (“Direction [41]”), was given by the respondent on 3 June 2009 and commenced on 15 June 2009. Part A of Direction [41]:
“ provides directions on the application of the character test ... set out in section 501(6) of the Act;”
and Part B:
“ provides directions on the primary and other considerations that are relevant to determining whether it is appropriate in the specific circumstances of the case to exercise the discretion to refuse to grant or cancel the visa. …”
Direction [41] will be relevantly referred to in more detail later in these reasons.
The Evidence
The evidence before the Tribunal comprised:
·the “G Documents” (G1–G13, pp 1–67) lodged by the respondent (Exhibit R1);
·Exhibits A1–A15 tendered by the applicant; and
·the oral evidence of the applicant and of Natasha Christidis.
The Applicant’s Criminal History
The applicant’s recorded criminal history in Ireland is as follows (G5, p 35):

Date
Court

Offence

Conviction

Details

16/4/2007

District Ct. 53

Driver entering a bus lane during the period of Operation of the bus lane with a vehicle other than a Omnibus or Pedal Cycle (Contrary to Section 35(5) of the Road Traffic Act, 1994)

Fine €500

24/6/2007

District Ct. 45

Fail Urine (Doctor Requirement) (S 49 Arrest)

Fine €400

3/6/2007

Intoxication in Public Place (Contrary to Section 4 of the Criminal Justice (Public Order) Act, 1994 as amended by Section 22 of the Intoxicating Liquor Act, 2008)

Fine €100

3/6/2007

Threatening/Abusive/Insulting Behaviour in a Public Place

Fine €200.

The applicant’s recorded criminal history in Australia is as follows (G6, p 36):

Court

Date

Offence

Court Result

Perth Magistrates Court

30 Sep 2009

Unlicensed Vehicle

Convicted: Fined $50

Perth Magistrates Court

14 Jul 2010

Unlicensed Vehicle

Convicted: Fined $75

Perth Magistrates Court

01 Oct 2010

Drive Under The Influence

Convicted. Fined $800. Licence disqualified for 6 months

Gingin Magistrates Court

26 Oct 2010

No Authority To Drive – Never Held

Convicted. Fined $300. Licence disqualified for 3 months.

Perth Magistrates Court

01 March 2011

No Authority Drive – Disqualified/Suspended

Convicted. Fined $400. Licence disqualified for 9 months

Perth Magistrates Court

15 Apr 2011

Obstruct Police Officer

Convicted. Fined $500.

Disorderly Behaviour in Public

Convicted. Fined $300.

Give False Personal Details to Police.

Convicted. Fined $200.

The Applicant’s Evidence

The applicant tendered in evidence a statutory declaration made by him on 27 January 2012 and he confirmed that its contents are true and correct. That statutory declaration is as follows:
“ …
My history prior to coming to Australia
2.I grew up in Ireland in the town of Finglas with my mother and father plus my brother and sister. With the exception of living in Perth, Australia, I have not lived anywhere else. The remainder of my family continue to live in Ireland. My Mother and Father though are planning to migrate to Australia next year.
3.I am of Catholic Christian background. I attended Patrician College for my upper education which is an all boys school located in Finglas. Growing up in Ireland I was very close to my family, including many of those in my extended family.
4.After I completed High School I went on to pursue a career in Painting and Decorating. I worked fulltime since school and attended FAS college to complete my painting and decorating course. I qualified in 2007, top of the class at Dublin Institute of Technology (FAS college).
5.Prior to leaving for Australia I was part of the team painting within the International airport until I was made redundant due to the recession in Ireland.
Irish Offence – Driving in a Bus Lane - April 2007
6. At the time of my first offence I was 19 years old.
7.I believe this driving offence occurred on a public holiday and I did not realise the bus lane was in use. I was pulled over by the police (Gardai) and given a fine which I paid. The fine was €500. I believe the fine was so high because I was still on my provisional licence at the time an (sic) traffic fines in Ireland are a lot higher for learner drivers.
Intoxication in a Public Place and Threatening / Abusive / Insulting behaviour - June 2007
8.On this day, I had gone to watch a Gaelic football match with a group of friends at the Croke Park Stadium.
9.After the game finished, we went to the local pub beside the stadium. The group of us were in the garden recalling the game and drinking. Whilst we were there a man came up to us and approached me and my friends accusing us of taking his drink. We didn’t know anything about this and we tried to ignore him but he became more aggressive and insisted I buy him a drink. I again refused and continued to try to ignore him but a minor scuffle soon occurred and the security of the bar took us out. The police were called as they were in the area due to the game and I believe that we were both charged with the same offence.
10.I did go to the pub the next day to apologise and explain the incident to the security. It was definitely a situation that I believe could have been resolved. As a result of the charge I was required to attend court. I represented myself and I plead guilty to the offences.
Failing to give a urine test - June 2007
11.I recall that it was a Saturday night and I had gone to pick my friend up from the black sheep tavern in Coolock Town. I was driving in Ballymun as that was where my friend lived. I was dropping him home an (sic) just a street away from where his house was when I was stopped by the police.
12.I was accused of drink driving and I was detained and driven back to the police station where I was told I needed to provide a urine sample. I requested to see a lawyer or a legal representative as I didn’t understand the process and thought I had been mistreated by the police as I had been roughed up and then left in the back of the freezing van without any heat for half an hour.
13.The Gardai (Police Officer) did not call a lawyer or legal representative and I was given the fine for failing to provide the sample when asked. The matter went to court where I pleaded guilty to the charge. I believe I was given the minimum fine. I was not charged with drink driving.
Losing my job
14.At the end of 2008 I lost my job working for COM painting contractors who at the time were doing work on the Dublin airport. All of the painting contractors as well as all the other trades that had been working at airport had their contracts cancelled due to the recession.
15.Prior to losing my job I had always been working. With the economic situation in Ireland there were no other jobs, particularly not in the construction industry. I stayed on the books with COM but very little came of it. Being unemployed and without anything to do was very hard for me to handle as I had always prided myself on being someone who was a hard worker and always busy. Many of my friends and family had also become unemployed and life seemed to become very bleak without any hope. Unemployment, depression, suicide and crime started to affect everything around me. During this time I found that I started to drink a lot more and I was often very depressed about life.
Leaving Ireland for Australia
16.In 2008 and 2009 many people I know started to leave Ireland to try and find a new life and some kind of a future. In 2009, my best friend Karl Deegan and I decided we would travel to Australia to try and find a future for ourselves. It was very hard to make the decision to leave my friends and family but I knew I couldn’t survive in Ireland.
17.I wasn’t able to leave with Karl on the date that we agreed because I couldn’t afford it. My family helped me put together the money for the trip and I went to a local travel agent to book my tickets and for them to sort out my working holiday visa. I recall that I did tell them about the fines and I recall that they told me it was not something I needed to worry about as fines were not criminal convictions and that criminal convictions were only if you had spent time in prison. I had never really travelled before and just assumed that was correct. It was not until I received advice from a migration agent when applying for my permanent residence visa that I learnt different. It was for this reason that on my passenger cards I ticked that I did not have any criminal offences.
18.I arrived in Perth 2 months after Karl in early 2009. That has been the longest period of time I’ve been away from Karl as we have known each other from a very young age. We’ve been inseparable since the age of 8. I was so happy to see him again when I arrived in Perth. With Karl’s help I settled in quickly and started to make new friends.
19.I found employment very quickly due to my skills and experience. I was employed almost instantly which I was thrilled with and have nearly always been able to remain fulltime employed – when one position has come to an end I have been able to quickly move to another. Since my arrival I have being trying to help my family back in Ireland by sending money home when I can.
20.With the working holiday visas that I was on I had to keep changing employers but in late 2010 Bergen & Co offered me the opportunity to obtain my permanent residence through an Employer Nomination Scheme Visa. I was so happy to be given this opportunity and, more or less, the moment I arrived it had been my desire to live in Australia permanently. I went to see a migration agent to get advice on how to proceed and it was then that I learnt about the need to fully disclose everything that had occurred.
Australian Offence – Unlicensed Vehicle – September 2009
21.In mid 2009 I had recently purchased a second hand car (1998 Ford Falcon). In September 2009 I was pulled over by the police for having an unregistered vehicle. The police officer explained to me that my car had not been registered. I was quite shocked by this as I had thought I had done everything correctly after I had purchased the car.
22.I was given a $50 fine and I took steps straight away to get my car insured and registered properly. I was not required to attend court.
Australian Offence – Unlicensed Vehicle – July 2010
23.For this offence I recall that I was stopped by police who advised me that my car registration had expired. At the time I had thought that I had more time to pay the registration and I was waiting for my wages to come through to pay it. The police were extremely helpful and explained how the registration letters actually worked to me. I received a $75 fine and I paid the registration. I was not required to attend court.
Australian Offence – Driving Under the Influence – October 2010
24.I recall that this offence happened on our (sic) about mid-September 2010. I had gone to the Paddington Ale House for dinner with friends. I had only a few pints and a huge meal, water, coffee and had spent what I thought had been a while talking with friends.
25.I left relatively early as I had to start work early in the morning the next day. Initially I called a taxi as I didn’t want to wait any longer for friends. However after waiting outside for a long time and with no taxis I felt that I was completely sober and able to drive as it had been hours since my last drink. A friend offered me his car as he was very intoxicated and unable to drive. I stupidly thought I was good to drive and shortly after leaving the pub I was stopped by an unmarked police car.
26.I don’t recall how far over the limit I was but when I attended court a few months after the offence. I plead guilty and my licence was suspended.
Australian Offence – Driving without a valid licence – October 2010
27.I recall that this offence also occurred in mid September 2010. This was before my licence was suspended in October. I was travelling with friends to Geraldton for the weekend when I was pulled over by the police. I was charged with not having a valid licence because I owned an Irish driving licence and had not changed it to an Australian one. I wasn’t even aware I had to do this because I’d been previously been (sic) stopped by police and this was never an issue or even mentioned.
28.I was not required to attend court and agreed to plead guilty because I could not attend Gingin Court to provide evidence of my Irish driving licence because I didn’t want to drive again until I had everything sorted as I didn’t want to get in anymore trouble. I just wanted the matter resolved. I thought I would only receive a fine and I never received any paperwork of the fine or suspension. I realise now that had (sic) I should have dealt with this matter differently.
Australian Offence – Driving without a valid licence – March 2011
29.This offence occurred when I was working and had gone to the local shop for lunch when I was pulled over.
30.I thought that my driving suspension had ended and I hadn’t known about the outcome of the Gingin case and the resulting additional suspension. I pleaded guilty in court to the offence. I realise that I was reckless in not being certain about the date that I could start driving again.
Australian Offence – Obstruct a Public Officer, Disorderly Behaviour in Public, Give false details to Police – April 2011
31.This offence occurred on or about 26 March 2011. I had been out drinking with friends at Rosie O’Grady’s in Northbridge. At the time I had a fractured arm/wrist and was taking pain medication. On reflexion this was not a smart decision as it meant the alcohol affected me more.
32.To the best of my memory I recall that one of my friends had gotten into an argument and was being physically removed by security but he was resisting. I then tried to calm him down before the security staff grabbed me also. Before I knew it we were outside and the security were swinging punches at my friend. Even with my broken arm I did try to intervene before a bouncer ripped my shirt clean off my back by dragging me. I started arguing with the bouncers outside about the unnecessary brutality and I was requesting to see the manager before the police came and I panicked and tried to leave because I knew I didn’t want to be involved with any trouble and especially with the police. Because I was so drunk I fell over a few yards away because I tripped over an un-even surface. I had cuts and grazes all over my forehead and elbows and shoulder. I was arrested and charged.
33.I don’t remember giving false details to the police, nor do I remember much else about the night but when I attended court I was very embarrassed by what had happened and I pleaded guilty. After the incident I went back to Rosie O’Grady’s and have met with the manager to explain what had happened. She had already checked the cameras an (sic) from security staff information was aware that I wasn’t directly involved that I was only trying to stop the bouncer from attacking my mate. I’ve been back to the pub many times since that night for meals and to listen to the bands they have on without any incident.
Changing my Life
34.Being charged with my last offence was a rock bottom point for me. I realised at that stage that something was seriously wrong with my life and that if I didn’t try and turn things around my future wouldn’t be very good.
35.I had started drinking at the age of about 14 years old in Ireland as it is a common custom in our culture as the majority of teens and adults meet together and drink in pubs. Ever since I had steadily become a heavy drinker.
36.In 2010 and the early part of 2011 I was drinking very regularly, especially during the weekends. On average weekend night I would have consumed 6 – 10 pints of beer followed by Jack Daniels. I would drink so much that I would blank out and remember very little. On week nights I would drink 3-4 pints per evening at home. I didn’t know it at the time but in hindsight I had a significant drinking problem.
37.After my last court attendance, I was given the opportunity through the court to get some assistance with my alcohol problem and I made the decision to embrace the opportunity to get help. I attended Cyrenian House and met with a councillor (sic), Stephen Rummer, on a number of occasions for counselling sessions. He helped me work through a number of personal issues which we identified as being part of my drinking problem. These issues included:
a)A very close cousin who I had seen almost every day before leaving to come to Australia and who I regarded as an older brother had died in January 2011. This was very hard for me to accept and because I was saving to pay for my visa I wasn’t able to return to Ireland for his funeral;
b)In February 2011 my brother and his wife had a baby boy in Ireland. They had asked me to be his godfather and to be at his christening in April but again I couldn’t afford to leave Australia. My family means a lot to me and to not be able to be there was something I deeply regret;
c)In March 2011 I broke my arm outside of work. Because of the pain I had to take a number of weeks off work which meant I wasn’t receiving any income for much of that time which caused me even more stress and anxiety. Also not working was like being unemployed again and I absolutely hated being idle and how that made me feel.
38.After attending Cyrenian House I came to understand that the way I was dealing with these issues and my resulting depression was by drinking excessively. I came to appreciate that what I was doing and the lifestyle I had been living was just getting me into trouble and turning me into a person I did not want to be.
39.Whilst I only had 4 direct counselling sessions, these sessions were a real eye opener for me. These sessions made me appreciate that my drinking was affecting my life and that the reality was that if I kept it up I would lose everything I had worked so hard for including my job, my best friends, my girlfriend; and the people who care about me. I didn’t appreciate it at the time but I was also risking my chance to have a future in Australia. Until I got help, these were just not things I even thought were affected by my drinking.
40.So with the help of my girlfriend Natasha, I made the conscious decision to stop drinking. After two counselling sessions I had cut right down on my alcohol consumption and after the further sessions with Mr Rummer I completely stopped drinking and have continued this thanks to the support I have from Natasha, my best friend Karl and other friends in Perth. I am dedicated to change and I have found and continue to find Cyrenian House to be of great help. Just knowing I can attend and speak with the staff at Cyrenian House at any time was a significant help and I had moved to live very close to the facility.
41.As a result of the changes I have made, drinking does not appeal to me anymore. I haven’t drunk more than 1 pint in the last 5-6 months. I have taken positive steps and made a conscientious effort to not drink. I have been attending the gym, taking dogs for walks, working more and going to the beach which helps to tire me after work and keeps me occupied to avoid the bad habit I previously had. I have also learnt to communicate and share my problems with my girlfriend and friends and not to use alcohol to try and wash them away. I also sold my car.
42.Prior to being detained by the Immigration Department I honestly thought that I was making some very good progress with my life and had turned a corner for the better.
My Life in Australia
43.From the moment I arrived in Australia I fell in love with Perth and I have worked hard to make it my home. I miss my family in Ireland but I know that I have no future there. My mother and father came to visit me in November 2010 and fell in love with Perth and are planning to migrate in 2013.
44.I have worked in Australia as a painter and decorator since I arrived and I have worked hard to get a good name for myself in my field. I really enjoy what I do and I try and share my knowledge and passion as much as I can. As part of my job I assist with training a number of young trade apprentices - as I completed a trade apprentice many years ago I thoroughly enjoy assisting the young apprentices to try and fill (sic) their dreams of completing their courses. Teaching the trade I know so well to others has been a wonderful opportunity and one that I would like to continue in Australia and for which I believe I can give back something for the opportunities I have been given.
45.I have also made many close friends in Perth. I have travelled briefly to the east coast of Australia for short holidays and always enjoy coming back to Perth. I consider Perth my home. The prospect of losing all my close friends is something I struggle to cope with.
46.Most importantly I have my relationship with Natasha, who is an Australian citizen. We have been together since September 2010. Since our initial meeting we have developed our relationship and it is based on a very close friendship. We have similar goals and dreams and would like to continue indefinitely with our relationship. Our relationship has not developed into a de-facto or married relationship yet as we did not want to take that step until we knew that I had a permanent future in Australia. However, until I went into detention, we did spend a lot of our free time together.
47.Natasha is wholly supportive of me and has been of great support to me for our entire relationship. She has been there when I have needed her most. When I was unable to drive she would take and pick me up from work, she take (sic) me to and from counselling sessions. I am certain that we have a strong and lasting relationship and we have endured the hardest part of our lives together which has made our relationship so strong. I cannot describe in words how much gratitude and love I feel for Natasha. She is the main reason I wish to remain in Australia and the thought of being apart from Natasha breaks my heart and bring (sic) me to tears.
Detention
48.I had thought 2011 was the worse (sic) year of my life but suddenly being put in detention and having my freedom taken away from me is the worst thing that has ever happened to me. The day the Department rang me and told me to come in for a short interview I had no idea what was going to happen and no way to prepare myself.
49.I can’t describe in words what it’s like to be in here cramped into a small dorm with 8 blokes. I haven’t been able to sleep since I arrived and have been prescribed sleeping tablets with no effect. I’m lucky to get 3 hours sleep a night, I have no appetite and am emotionally and physically drained. Every day in here is a struggle but visits from Natasha an (sic) my best friend Karl and my other friends are keeping me going as I’m lost without having them around me on a daily basis. It is very hard and heartbreaking when they leave as the visits always end in tears and seeing Natasha and Karl so upset makes me feel even worse.
50.I can honestly say being in detention has been the worst experience of my life but I am willing even to stay here and appeal because staying in my home with my girlfriend an (sic) best friend and all me other great friends means everything to me.
51.All I can do is pray that you grant me a visa and allow me to remain in Australia and live an honest, trouble-free, hardworking life to go back to my home in Perth to the place an (sic) people that mean so much to me
My Future
52.I fully appreciate that my actions in the past were wrong and I am very sorry for the mistakes I made. I have learnt and am fully aware that I cannot mess up again and I promise I will not. I am not a violent or dangerous person, I’ve just made some very stupid choices which I cannot tell you enough how much I regret. I accept full responsibility for what I did and I make no excuses for my behaviour. I know that the law must be respected and that there are consequences for not doing so. I cannot change the past even though I really wish I could. I only ask that the Tribunal take into consideration what I was going through at the time and the problems that I was having and how much I have learnt from everything that happened.
53.I am still young but I have changed and matured a lot in the last 6 months and I know that I can have a bright, honest future in Australia if I am given the chance.
54.I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence under section 11 of the Statutory Declarations Act 1959, and I believe that the statements in this declaration are true in every particular.” (Exhibit A1)

In cross-examination the applicant acknowledged that his repeated driving offences in a short period of time in Australia indicated a disregard for the law on his part and he added that, at the time, he “wasn’t thinking straight” and that it was “stupid” of him. As regards his offences involving disorderly behaviour in a public place, the applicant said that he did not “go looking for trouble” but he acknowledged that those offences were related to his alcohol use and he added that he has now “dealt with” that problem by giving up drinking. The applicant denied that his criminal record represents a pattern of escalating seriousness in his offending.
The applicant accepted the opinion of Ms Genevieve Willis, Psychologist, that factors contributing to his past offending were “alcohol use, naivety, lack of maturity and dependent personality traits” and her recommendation that he attend counselling to address these risk factors (see paragraph 20 below).
It was put to the applicant that, in the event that he became emotionally stressed in the future, there was a risk that he would “turn to alcohol again” and “someone might get hurt”. He rejected that suggestion, adding that he takes anti-depressants, goes to the gym and has a counsellor at Cyrenian House to talk to. By way of example he referred to a recent family misfortune in Ireland and he said that he dealt with that by confiding in his counsellor and he “stayed away from drink”.
The Evidence of Natasha Christidis
Ms Christidis confirmed that she had sworn an affidavit on 27 January 2012 in support of the applicant for the purpose of this proceeding and that its contents are true and correct. The contents of that affidavit are as follows:
“ …
2.I first met Mark through a mutual friend in September 2010. We began communicating through the social networking site, Facebook. We also sms and speak to each other by phone regularly. In about late September 2010, Mark asked me out on a date. We continued to date from then on.
3.We began seeing each other regularly and spent a lot of time at his home after work, as we both worked full time. Mark worked from about 7am to 4pm so we usually spent time with each other after he had finished work each day and it was usually in his home, where we would relax, watch movies and swim in his pool. We usually had meals together at home. Mark was very social on the weekends and often saw his friends. I spent time with his wider friendship group. Mark relied heavily on his friendship group as his family lived in Ireland. Weekends were the only free days that we had. We usually spent the weekends doing things we didn’t have time to do during the week such as personal shopping and catching up with friends. Mark made me feel very comfortable. I always felt secure and he was caring and relaxed with me.
4.As our relationship has developed, so has my dependence on Mark. I confide in him and he in me. I understood from my conversations with Mark that he had moved to Australia in early 2009 because there were no employment opportunities for him in Ireland. Mark said to me that he moved to Australia because he knew that Australia could provide a better life for him. He has told me that he misses his family but that he wanted to forge a better life for himself in Australia and one that he could offer to his family later in his life.
5.We have not yet travelled together, as Mark and I work a lot but we do have plans to travel together in the future. It has been hard to make plans because of Mark's visa situation.
6.Mark and I also share and respect each other’s faith and beliefs. I am from a Christian background and have attended church all of my life. I attend services at least three times a week. I understand that Mark has faith and belief and when he can he attends church with me. I do not consider that attendance at church is necessary for me to have a successful and loving relationship with Mark but I have always enjoyed his company when he has been able to.
7.Our relationship has not yet progressed to being a de-facto or a married relationship mostly because his visa situation has prevented making any specific plans. It is hard to make future plans when there is uncertainty about whether he could remain permanently in Australia. Mark and I enjoy each other and I love the man he is. I wouldn't change the relationship I have with Mark for anything. We are both still young and have our whole lives ahead of us but I don't want to spend my future without Mark in it. I don’t believe in having multiple partners and neither does Mark. If Mark stays in Australia, we plan to continue to get to know each other, continue to spend our days together and continue to find out what love is. Each day we spend together, we learn more about love. We have talked about marriage but for the time being we are content with the relationship we have. I am really lucky to have Mark and I don’t know what I would do without him now
8.I am aware of the trouble that Mark has had in the past and this has not changed my opinion of Mark. His offences are completely out of character for him.
9.In January 2011, Mark lost his cousin. Mark had not spoken to me about his cousin, but from my observations his cousin’s affected (sic) him deeply. I do not know how to explain it except to say that he put a wall up. When I tried to speak to him about it, he didn’t really respond. I knew that his cousin who passed away was older than Mark. I did not speak to him about this but it is my opinion that Mark felt guilty that he was in Australia with a better life and his cousin had died while struggling in Ireland.
10.Mark broke his arm sometime in March 2011. This was a very difficult period of time for Mark as he was unable to work and had no income at that time. I could tell he was very stressed, but he tended to keep his feelings to himself, not wanting to put any pressure on me or any of his friends. I noticed that he started to drink more than often (sic). I could tell that he was struggling with finances and with the pain his arm would cause him.
11.In March 2011 I saw Mark after he had been out with friends. He was bruised and had gravel rash all across his chest. I was shocked and upset. I asked him what had happened. He said to me that he had been having a good night at Rosie O'Grady's with his friends. He said to me that one of his friends had been asked to leave. I understood from this conversation that Mark's friend was physically removed from the pub and that Mark had tried to calm his friend down. Mark said to me that the bouncers started to hit his friend. I understand that Mark got involved and that the bouncer dragged him across the ground causing the ripped shirt and gravel rash. I recall that he was charged and I did see a Court summons
12.After the Rosie O’Grady incident I recall that Mark called me and invited me over for a 'talk'. I do not recall when this exactly was. When I arrived at his house he seemed tired and down. Mark told me that he wanted me to drive him to counselling. He told me it was to try and help him change things. Mark attended approximately four counselling sessions. Mark quickly went back to his old self. Mark confided in me and said me (sic) he felt as though he was becoming a burden on his house mates and also on me as he did not have an income. Mark said he felt useless and said he let his pride get in the way. He told me that he regretted drinking more than what he should. Mark asked for my forgiveness and has since learnt to be open with me about everything and this has become a major asset to our relationship.
13.Mark said to me in about late 2011 that he had been promoted to a supervisory role at his workplace. I was very proud to hear this as he is very dedicated to his job and works long hours. He always seems to enjoy his work and takes great pride in it. He often said to me that once he had paid off his fines, he wanted to start saving so that he could afford to buy a house. I did not know how extensive his fines were.
14.I know that many people have a lot of respect and trust for Mark and that he always tries to help out when he can. My sister, E… B…, is married and has a young daughter. I often babysit my niece, S... Mark has often joined me in babysitting my niece. On New Years Eve, Mark and I visited my sister, E…, and her husband and daughter, and spent the night there. Like most people who know Mark, my sister and her husband enjoy Mark's company.
15.I recall Mark telling me that he was due to attend an interview with the Immigration Department in late 2011. I spoke to him about his interview and I texted him that day saying 'let me know how you go'. Mark was uncertain about why he was attending for the interview. He did not know why. I found out the afternoon of his interview that he had been detained through mutual friends. I remember feeling sick and scared. I had to take some time off work to process all of what was happening. I had not heard from him for 2 days and I was extremely worried. I tried to call Mark and his phone was turned off. I received a text message from an unknown number about 2 days after I had spoken to Mark. He informed me that he had his camera phone taken off of (sic) him. He was devastated about being in detention.
16.Since Mark has been in detention, we have spoken every day. I have visited Mark at the detention centre. It has been difficult to see him as I work from 8.30 to 5pm and then on the weekends, I have my church commitments which are time consuming, and it is also very hard to walk away from that place without him. It has been a frustrating and a difficult time. Mark being in detention, and his recent visa situation, has been hard for our relationship. Although we speak everyday via mobile telephone, we are lacking proper communication and it is affecting us emotionally. It has become hard to go about my everyday life. I have taken time off work. I can’t live my life properly knowing that the man that means the world to me could be taken away. I am trying to be optimistic for both him and for me.
17.Every time that I have spoken to Mark, he has said to me that he is terrified to be forced to return to Ireland. He has said to me words to the effect that 'there is nothing there for me'. Mark has cried to me over the phone since being in detention. I have not spoken to Mark about what will happen if he is deported to Ireland as it is not something we want to think about as I don’t believe that he deserves to be removed from Australia. We know that our relationship is strong enough to get through whatever the future has but our hopes are that our future together is here in Australia.
…”(Exhibit A2)
It is unnecessary to refer in detail to Ms Christidis’ oral evidence in these reasons.
Additional Evidence Relied On by the Applicant
Report of Ms Genevieve Willis
A “Psychological Risk Assessment Report” of Ms Genevieve Willis, Psychologist, dated 14 February 2012, states as follows:
“ … My understanding is that this report will form part of an appeal to the Administrative Appeal (sic) Tribunal, against a decision by the Department of Immigration and Citizenship to refuse Mr Williams’ visa application on the grounds that he does not meet the character requirements. This is based on the fact that Mr Williams has been convicted of several offences including
·Unlicensed Vehicle x 2
·Drive Under the Influence x 1
·No Authority to Drive – Never Held
·No Authority to Drive – Licence Disqualified
·Give False Personal Details to Police, Disorderly Behaviour in Public, and Obstruct Police Officer.
This report is based upon:
·     3 hour interview with Mr Williams at the Perth Airport Immigration Detention Centre (30/01/12), including psychological testing. The testing included the use of the Millon Clinical Multiaxial Inventory – 3^rd edition (MCMI-III) an instrument that is used in many diagnostic and treatment settings, to permit the assessment of a wide range of clinically relevant behaviour, as well as the Beck Depression Inventory – 2^nd Edition (BDI-II) to measure clinical levels of Depression.
·     Review of assorted information provided by Mr Williams’ Lawyer, including but not limited to, reference letters, Police Clearance Certificates, and relevant sections of the legislation.
·     Phone conversations with Mr Williams’ girlfriend, Natasha Christidis (14/02/12), attempts were made to get in touch with his friend Karl Deegan but were unsuccessful at the time of writing.
Presentation
Mr Williams presented as a friendly and polite man who was fully compliant with the assessment process. He was open and communicative. He appeared oriented to time and place and there was no evidence of major psychiatric issues noted during the sessions, apart from some evidence of symptoms of depression. Mr Williams demonstrated insight into his offending behaviour and appeared to take full responsibility for his actions, as well as demonstrating remorse for his actions. He appeared to be genuine in these insights and attitudes.
Offending Behaviour
Apart from the current offences, Mr Williams has a limited criminal history in Ireland, with four previous charges of a similar nature to the current charges. Mr Williams reported that when he arrived in Australia he was not well versed on the rules around car registration and use of his Irish Drivers Licence. He said that he tended to follow the lead of some of his friends who were already living in Australia on these matters. He reported that when he bought his first car in Australia, he went and lodged the transfer papers and did not realise there was anything else to do – until he was stopped by the police and discovered that his vehicle was unregistered. Mr Williams said he paid the fine and immediately went down to register the vehicle. The next time be bought a car, Mr Williams reported that the vehicle registration had a couple of months still left on it and that he was waiting for the paperwork to arrive to prompt him to renew the registration. Mr Williams claimed that he never received this paperwork, possibly due to the fact he changed address several times, and that the registration lapsed without his knowledge. Mr Williams related that at the time he was living a ‘backpacker lifestyle’ of working and partying and didn’t give enough thought and attention to these kinds of matters. Once again, when he was stopped by police and was found to have an unregistered vehicle he went down to have it registered immediately.
With regards to the ‘Driving under the Influence’ offence, Mr Williams said that he was particularly ashamed of himself. He said that he never normally drives when he has been drinking but on this occasion he thought that enough time had elapsed, that he had consumed a large meal and that he would be under the limit. He said he was stopped by police who were monitoring people who left the hotel and got into cars, and was unfortunately over the limit.
The next offence was Driving without a Licence – Never Held, which referred to the fact that Mr Williams had not changed his Irish driving licence to an Australian Licence. He admitted that he had not looked into this and most of his friends had not changed their licences so he thought it wasn’t a problem. He also said that when he was previously stopped by police they had never commented on his Irish Licence. He later was caught driving without a Licence – suspended/disqualified, thinking his Licence suspension period had finished. Once again he acknowledged that he was foolish to drive without being certain of the dates. He described his behaviour as ‘stupid’ and said that after this offence he sold his car, so as not to even think about driving.
Whilst Mr Williams appears to have been very naïve and somewhat irresponsible about these driving offences it is important to acknowledge that he was young at the time of the offences and his better knowledge of the Australian system as well as maturity may help prevent him from offending in the future. He also admits being a somewhat dependent person, relying on information from friends, information which turned out to be unreliable.
The final 3 offences were related to the same incident whereby Mr Williams’ friend was being ejected from a pub and Mr Williams who was very intoxicated at the time got involved trying to protest the level of force with which (sic) the bouncers were using. He said he doesn’t remember what happened but was told he became involved in a scuffle and then tried to get away from police, presumably because of all the other trouble he had been in. Mr Williams reported that he is not a violent person, and had he not been intoxicated to the degree his (sic) was, this incident would never have happened. Mr Williams reported that after this offence he began to reconsider his drinking habits given the problems he was experiencing associated with them.
He said that the court facilitated his contact with Cyrenian House and that he attended 4 sessions of counselling to address his alcohol problem. Mr Williams related that by the time he was detained he had almost given up drinking completely and if he did drink it was at most once a week and then only one drink (confirmed by his girlfriend). He said that he was in control of his behaviour, feeling healthier, attending the gym, and was given more responsibility at work. He said that his finances had improved, and also that he was thinking more clearly and able to focus on his responsibilities in general. Mr Williams related that he still socialized with friends in pubs and was able to do so without consuming alcohol.
Social History
Mr Williams reported that he was raised in a good Irish family. He related that he had and still has very close relationships with his parents and siblings. Mr Williams said that he had a happy childhood, was afforded a good education, and went on to do training in Painting and Decorating after leaving school, which he was successful in completing. He stated that he went on to work as a Painter and Decorator in Ireland until he moved to Australia approximately 3 years ago. He related that it was very hard to find work in Ireland due to the recession and he, like some of his friends, moved to Australia to seek employment.
Mr Williams reported that the culture in his country and in the area in which he grew up, was a drinking culture. It was common to go to the pub regularly, and to drink heavily on weekends. Mr Williams said that it was accepted practice to occasionally ring your boss on a Monday morning to say that you couldn’t attend work due to a hangover. He said in Ireland there was a very relaxed attitude towards drinking, which he feels may have contributed to the fact that he didn’t acknowledge his drinking problem for several years. He said that since living in Australia some people have commented on the Irish attitude towards drinking and that he has begun to realize that his past drinking habits were not necessarily considered ‘normal’ in Australia. As mentioned before, he finally realized he needed help to change his drinking habits following his last offence.
Psychological Testing
Mr Williams was administered the (MCMI-III) a 175-item standardised measure which assesses personality traits and emotional adjustment as well as the presence of clinically concerning features. This tool has a number of indices to appraise an individual’s response style to guard against careless, confused and random responding as well as being able to identify whether a respondent answered with a significant positive (fake good) or negative deviation (fake bad) from that commonly observed. Mr Williams’ results indicated a valid profile, but that he answered the questions in a style so as to present himself in a favourable light. This is not uncommon under the circumstances and does not adversely affect the results of the test.
The results indicated that Mr Williams is suffering from anxiety and that he acknowledged past problems with alcohol abuse. There were no other elevations of clinically concerning traits in his personality or mental health, which is positive in terms of his ability to conduct himself as a pro-social member of the community.
When tested with the BDI-II Mr Williams was found to be experiencing symptoms of Depression in the Severe category. He reported that most of these symptoms have begun since being taken into custody and being away from his friends and girlfriend, as well as facing the prospect of deportation. Mr Williams indicated how he was feeling prior to being taken into custody in the same test and he was in the Minimal (lowest) category for symptoms of Depression. He did also acknowledged (sic) that he felt a high levels of these symptoms for a period after his cousin died in January 2011, and when he had a broken arm and was off work in March 2011.
Risk Factors for Re-offending
There are several criminogenic factors … that influence a person’s risk of re-offending. These include a history of criminal behaviour under the age of 18 years. There is no indication Mr Williams has a history of offending as a juvenile. There is no evidence that Mr Williams is suffering from any major mental illness, apart from the fact he is suffering from reactive depression associated with being in detention. Substance abuse is another factor and Mr Williams has recognized that this is a problem for him, has sought counselling and has been able to reduce his alcohol use to a minimal and manageable level. He stated that he does not use illicit drugs. Mr Williams did not demonstrate pro-criminal attitudes during the assessment, and from his self-report and that of his girlfriend, he is remorseful and ashamed of his behaviour. Mr Williams does not have an offending peer group, and his friends all appear to be law-abiding hard working people. From reading the reference letters about Mr Williams, he clearly has a good skill based trade, and a good work ethic, and has employment available to him if he is allowed to stay in Australia. Mr Williams has excellent support in the community, including his girlfriend and a group of peers. In addition, he has a supportive family who would also like to move to Australia in the future. Finally, Mr Williams has already begun implementing a relapse prevention plan in terms of his alcohol use. He has acknowledged his stupidity around relying on information from friends and has said that he would do his own investigating in future.
Based on these factors, Mr Williams presents as a low risk of re-offending. There were a couple of issues of note that came up in the assessment, and those were that Mr Williams lacked maturity in his attitude towards his legal responsibilities in Australia (re: changing his Drivers’ Licence and Registering his vehicles). He also appeared somewhat dependent on his friends for information. It may be beneficial for him to engage in psychological counselling to assist him to be more independent, and mature in his decision making. In addition he could consolidate the gains he has made around managing his alcohol use. It is likely that between 5-8 sessions would be helpful.
Impact of Deportation
Mr Williams appeared to be devastated at the prospect of being deported back to Ireland. He has set up a life for himself in Australia and is very keen to have a long-term future here. He stated that if he was deported back to Ireland he would face the prospect of being unemployed (the reason he left Ireland). This appears to have veracity as it has been widely documented in the media that Ireland has been badly affected by the Global Financial Crisis and is currently in recession, with high levels of unemployment across the board. In addition, Mr Williams would be moving away from his girlfriend and close friends, with whom he appears to have strong bonds. His deportation is likely to contribute to ongoing experience of depression in Mr Williams.
Ms Christidis said that she has just returned from a holiday to Ireland and that conditions appeared to be poor there. She said it would be difficult for her to follow Mark to Ireland if he was deported. She said that it will be extremely upsetting for her if Mr Williams is deported and that they have a great relationship, in which they were planning a future together.
In summary, Mr Williams appears to be a low risk of re-offending. Some factors were identified that have contributed to his past offending, such as, alcohol use, naivety, lack of maturity and dependent personality traits, and it is recommended that Mr Williams attend counselling if he is not deported to address these factors. Mr Williams is likely to suffer hardship if he is deported to Ireland, in that he faces unemployment, and consequently a reduction in his quality of living. He will be moved away from his girlfriend and his close peer group, and is likely to continue suffering from depression.” (original emphasis) (Exhibit A3)
Attached to Ms Willis’ report is the following statement of her qualifications and experience:
“ I hold a Master of Forensic Psychology and am fully registered with the Australian Health Practitioner Regulation Agency as a Forensic Psychologist. I have worked with the Department of Corrective Services over a period of 11 years, first as a prison psychologist, then working with offenders on parole, including conducting assessments for Psychological Pre-sentence Reports. In addition I worked as a supervisor in the Programs Branch supervising the work of other psychologists running treatment programs for offenders. In recent years I have worked in my own practice and have conducted work for the Department of Corrective Services as a contractor including work as a proof reader for Psychological Pre-Sentence Report for court and conducting risk assessments on ‘Life’ sentenced Prisoners who are up for Review with regard to their risk of re-offending and their potential readiness for release.”

Ms Willis was not required by the respondent for cross-examination and she did not give oral evidence.
Letter from Stephen Rummer
The following letter from Stephen Rummer, Counsellor Outpatient Services, Cyrenian House, dated 7 September 2011, is included in the G Documents:
“ This is to confirm and verify that Mr Mark Williams attended four 1:1 counselling sessions with myself between 13/06/2011 and 21/07/2011. Mr Williams initially presented at our agency as a participant of the Pre sentence Opportunity Program (POP) through Perth Central Law Court, in relation to an alcohol-related offence. Upon presentation Mr Williams stated that it was not the first time he had been ‘trouble legally’ (sic) as a result of his use of alcohol. He reported that as a consequence of the legal situation he was in he had given the issue a lot of thought and it had become very obvious to himself that his level of alcohol consumption was having a pronounced negative impact on his life and well being as well as others. He stated that he wanted ‘no more trouble’ as it made him feel very stressed and worried and he wanted to live his life in a more mature and responsible manner.
During the course of the counselling process Mr Williams reported reducing his use of alcohol to very occasional (ie less than once per week) and then in very moderate amounts (ie 2-3 beers). As a result Mr Williams stated that he was feeling clearer in his thinking, physically healthier and generally more positive. Mr Williams also stated he’s realized that he is able to have fun and enjoy himself without alcohol.
Mr Williams presented as being open and willing to engage in the therapeutic process as well as being proactive in the setting of goals and the workable action in achieving them. He appeared motivated and committed to his stated goals to bring about sustainable constructive change.” (G8)
Letters from Adam Bergen
The following letter from Adam Bergen, Manager, Bergen & Co, Painting Contractors, dated 8 September 2011, is included in the G Documents:
“ My name is Adam Bergen. I am the owner of the company who is the (sic) sponsoring Mr Williams. I am writing this letter to express my sincere recommendation that Mark’s character consideration application receive a positive outcome.
Mark is a valuable and respected member of our team. His attitude to his work has seen him promoted to a supervisory role within our business very quickly and we have not regretted doing so.
As a customer service based business having positive feedback is vital to our business. I confirm that we have received lots of positive feedback from our clients regarding Mark’s professionalism and courtesy shown whilst conducting his work.
He excels in the following areas:
·Contract supervision
·Training and mentoring our apprentices
·Liaising and assisting with our clients regarding our contract obligations
·Stock control and purchase orders
·Business innovations and suggestions for our workplace (he has made a number of good suggestions).
Mark has helped assisted (sic) with providing support and training a number of our staff including two of our apprentices that are better tradespersons today as a result of Mark’s ability to train and inspire our younger members.
Mark has always been a reliable and presentable staff member and brings a good positive energy to our workplace. He would be an extremely difficult member to replace.
I would ask you to please consider this when making your judgement regarding Mark’s visa. I am aware he does have an appetite for socialising which has led him to make some poor judgements however he does recognise this and I’m confident that there will be no further indiscretions. He is remorseful for these actions and has gone to efforts to change his social circle and alcohol consumption.
He is an asset to our company and a respected member of the Perth community.
…” (G9)
A further letter from Mr Bergen, dated 16 January 2012, which was tendered in evidence by the applicant, states as follows:
“ …
I am aware that Mark is now being detained. Should his application for release be granted then I would be willing to continue to support Mark by way of full time employment.
Mark is a valuable and respected member of our team and I regret to hear of his current situation.” (Exhibit A5)
Character references
The applicant tendered in evidence nine supportive reference letters written by persons resident in suburbs of Perth and dated in January 2012 (Exhibits A6–A12, A14–A15). He also tendered in evidence the following letter from Niamh Cuthbert of Dublin, Ireland, dated 13 January 2012:
“ I am a primary school teacher in Finglas and it is through this that I have come to know the Williams family. I have known the Williams family for over ten years now.
Mark Williams has always struck me as a very strong character with a great respect for other people which is then mirrored in other people’s attitudes towards him. Mark has always mixed well with people of all ages and is always the first to offer help of any kind. Mark has an honest and trustworthy nature and instils confidence in the people who surround him. I have witnessed first hand Mark’s dedication and hardworking attitude. He always puts his best foot forward in life and meets challenges head on.
Mark is a skilled painter and decorator he displayed vision and flair right from the beginning of his apprenticeship. He managed to complete his apprenticeship in Dublin when so many of his peers had to be let go. This speaks volumes of Mark’s hard work and talent, as the company he was working for struggled to keep him on the staff in these hard times. Unfortunately as building work ground to a complete standstill in Dublin with great regret Mark had to be let go. Mark found being unemployed very hard to deal with as he had always been so active and hardworking, Mark took it upon himself to change his circumstances and leave for Australia. A move which all people who know Mark will agree was the best thing for him. He has settled into Perth so well, he now calls it home. He has been there almost three years now and although naturally people at home miss him they are all proud of him for turning his life around and delighted to hear he is thriving and happy.
The downturn in Ireland has affected many people but in particular young men, I have witnessed first hand so many young men who had such bright futures ahead of them, get disheartened and even depressed by the current economic situation. My fear would be that should Mark return to Ireland that (sic) he will become one of these men. Unemployment rates in Ireland continue to soar and there seems to be no end in sight at the moment.
I do hope that you will look favourably upon Mark’s request and allow him to continue to flourish in Australia. I hope that you will not hold his small number of offences against him when reviewing his application as he thoroughly regrets them. Please take into consideration that these incidents occurred at a low point in Mark’s life and he has taken the initiative to turn his life around and has never looked back. I hope you will overlook these incidents and I wish Mark all the best for the future.” (Exhibit A13)
Analysis
Has the applicant satisfied the Tribunal that he “passes the character test”, within the meaning of s 501(1) of the Act?
Section 501(6) of the Act prescribes, in paras (a)–(d), the alternative circumstances in which a person does not pass the “character test” for the purposes of s 501. If none of the circumstances specified in paras (a)–(d) exists or is satisfied in a particular case, the final sentence in subs (6) provides that “the person passes the character test”.
In the present case the respondent submitted that para (c) of s 501(6) of the Act is satisfied in respect of the applicant. Paragraph (c) provides:
“ (c)   having regard to either or both of the following:
(i)    the person’s past and present criminal conduct;
(ii)   the person’s past and present general conduct;
the person is not of good character; …”
As regards the circumstance specified in para (c) of s 501(6) of the Act, Direction [41] states:
“7.3      Not of good character on account of past and present criminal or general conduct
(1)   A person will not pass the character test if the person is not of good character, having regard to their past and present criminal and/or their past and present general conduct.
Note: See section 501(6)(c) of the Act.
(2)   In considering whether a person is not of good character, all the relevant circumstances of the particular case are to be taken into account including evidence of rehabilitation and any recent good conduct.
Note:‘Past and present criminal conduct’ and ‘past and present general conduct’ are discussed further below.
7.3.1 Past and present criminal conduct
(1) In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered:
(a) the nature, severity and frequency of the offence/s;
(b) the period since the offence/s were committed;
(c)   where the offence/s were committed;
(d) the person’s record since the offence/s were committed, including:
(i)     any evidence of recidivism or continuing association with criminals;
(ii)     any pattern of similar offences;
(iii)    any pattern of continued or blatant disregard or contempt for the law;
(e)any circumstances surrounding the offending which may explain the conduct such as may be evident from judges’ comments, parole reports and similar documents; and
(f)any good acts of the person after their criminal conduct are indications that the person’s character may have reformed.
Thus, both good and bad conduct must be taken into consideration in obtaining a complete picture of the person’s character.
7.3.2Past and present general conduct
(1)               In considering whether the person is not of good character on the basis of past and present general conduct, the following factors are to be considered:
(a)whether the person has been involved in activities indicating contempt or disregard for the law or for human rights. This includes, but is not limited to:
(i)    involvement in activities such as terrorist activity, activities in relation to trafficking or possession of trafficable quantities or proscribed substances, political extremism, extortion, fraud; or
(ii)   a history of serious breaches of immigration law; or
(iii) involvement in war crimes or crimes against humanity;
Note:   The past and present general conduct provision allows a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not, strictly speaking, have constituted a criminal offence. Therefore, the list of examples above is broader than those listed in paragraph 10.1.1 of this Direction. The provision is generally used in respect of the refusal caseload and very rarely in relation to cancellation.
…”
The Tribunal approaches this issue from the standpoint that the applicant is presumed to be of good character prior to his engaging in criminal or other conduct which calls his character into question, and the matter for the Tribunal’s determination is whether, by engaging in such criminal or other conduct, the applicant has ceased to be of good character.
The phrase “good character” is not defined in the Act and should be understood in its “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”: Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431; see also Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197; Goldie v Minister for Immigration and Multicultural Affairs (1999) 56 ALD 321 at 323–324.
Having regard to the factors referred to in para 7.3.1(1) of Direction [41], the Tribunal is of the opinion that, although the applicant’s criminal history (set out in paras 12 and 13 above) calls his character into question and indicates some weakness of character, it is not sufficiently serious to warrant the conclusion that he is presently not of good character. The Tribunal notes that, although the applicant was convicted of a total of 12 offences in the period of 4 years from April 2007 to April 2011:
·none of those convictions resulted in a sentence of imprisonment; rather, they resulted in the imposition of fines ranging from $50 to $800 (and, in three cases, disqualification from driving);
·seven of the convictions related to motor traffic/driving offences;
·two of the four convictions in Ireland arose out of the same incident, and three of the eight convictions in Australia arose out of the same incident.
The Tribunal accepts the applicant’s evidence regarding the circumstances in which the 12 offences were committed (as described in paras 6–13, 21–33 of his statutory declaration set out in paragraph 14 above). The Tribunal is satisfied, having regard to the applicant’s evidence and the report of Ms Genevieve Willis (set out in paragraph 20 above), that the applicant’s offending has been attributable to such factors as alcohol use, naivety, lack of maturity and dependent personality traits, and that he accepts full responsibility, and is genuinely remorseful, for his offending conduct. The Tribunal also accepts the applicant’s evidence that, following his being charged with his last three offences in March 2011, he came to the realization that excessive alcohol consumption was having a severe adverse impact on his behaviour and his life generally, and that, as a result of his subsequent attendance at counselling sessions with Stephen Rummer at Cyrenian House and the support of Ms Christidis, he has reduced his alcohol consumption to a minimum. The Tribunal is satisfied, furthermore, that the applicant is now motivated and committed to keeping his alcohol consumption to a minimum and to live a law-abiding and constructive life.
As regards para 7.3.2(1)(a) of Direction [41], the Tribunal notes that the applicant falsely indicated, in an incoming passenger card for immigration purposes, on 1 March 2009 and on 10 September 2009, that he did not have any criminal convictions (G10). The Tribunal also notes the applicant’s explanation for making those false statements, as set out in para 17 of his abovementioned statutory declaration, and it further notes that, when subsequently completing his application for the visa in February 2011 with the assistance of a migration agent, he truthfully indicated that he had been convicted of a crime or offence (G4, p 26). Notwithstanding the abovementioned false statements made by the applicant in incoming passenger cards in March and September 2009, it cannot reasonably be said, in the Tribunal’s opinion, that the applicant thereby has a “history of serious beaches of immigration law”, within the meaning of para 7.3.2(1)(a)(ii) of Direction [41]. None of the other factors referred to in para 7.3.2(1) of Direction [41] is applicable in the applicant’s case.
The Tribunal concludes, therefore, that para (c) of s 501(6) of the Act is not satisfied in the applicant’s case.
Although the respondent did not seek to rely on para (d) – in particular, subpara (i) – of s 501(6) of the Act, the Tribunal, for the sake of completeness, will briefly consider whether that subparagraph is satisfied in this case.
Subparagraph (d)(i) of s 501(6) of the Act provides:
“(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i)engage in criminal conduct in Australia; …”
As regards the circumstance specified in subpara (d)(i) of s 501(6) of the Act, Direction [41] states:
“ 7.4.1 Significant risk of engaging in criminal conduct in Australia
(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 significant risk that the person will engage in criminal conduct in Australia.
Note See section 501(6)(d)(i) of the Act.
(2) The reference to criminal conduct must be read as requiring that there is a significant risk of the person engaging in conduct for which a criminal conviction could be recorded.”
The phrase “significant risk” is elaborated upon in para 7.4(2) of Direction [41] as follows:
“ The ‘significant risk’ grounds are enlivened if there is evidence suggesting that there is more than a minimal or trivial likelihood 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.”
Having regard to the abovementioned report of Ms Genevieve Willis, in which she concluded that the applicant “presents as a low risk of re-offending”, and to the applicant’s evidence, and his presentation in giving that evidence, at the hearing, the Tribunal is (as previously stated) satisfied that the applicant is now motivated and committed to living a law-abiding and constructive life, and the Tribunal is confident that he will achieve that goal. In the Tribunal’s assessment, there is no evidence before it which suggests that there is presently “more than a minimal or trivial likelihood” (within the meaning of para 7.4(2) of Direction [41]) that the applicant would engage in “criminal conduct” (within the meaning of para 7.4.1(1)) in Australia if he is allowed to remain in Australia.
The Tribunal concludes, therefore, that subpara (d)(i) of s 501(6) of the Act is not satisfied in the applicant’s case. There can be no suggestion furthermore, that any of the other subparagraphs of para (d) of s 501(6) is satisfied in this case.
Likewise, there is no evidence, and no suggestion by the respondent, that either para (a) or para (b) of s 501(6) of the Act is satisfied in this case.
Conclusion and finding
Accordingly, the Tribunal concludes that none of the circumstances specified in paras (a)–(d) of s 501(6) of the Act exists or is satisfied in the applicant’s case. Pursuant to s 501(6), therefore, the applicant “passes the character test”.
The applicant has, therefore, satisfied the Tribunal that he “passes the character test”, within the meaning of s 501(1) of the Act, and the Tribunal so finds.
It follows from that finding that the discretionary power to refuse to grant the visa to the applicant, pursuant to s 501(1) of the Act, is not enlivened. The Tribunal will, nevertheless, also consider whether that discretionary power, if it were enlivened in this case, should be exercised adversely to the applicant.
Should the discretionary power to refuse to grant the visa be exercised in this case?
Part B of Direction [41] comprises paragraphs 8–11. Paragraph 9 states:
“(1) … decision-makers must take into account the primary considerations in every case. The other considerations (defined in paragraph 11) should be taken into account where relevant.
Note:The primary considerations are set out in paragraph 10 of this Direction. The other considerations are set out in paragraph 11.
(2)Decision-makers should only take into account directly relevant considerations.
…”
The Primary Considerations
Paragraph 10 of Direction [41] sets out the primary considerations as follows:
“ 10.     The primary considerations
(1)In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a)   the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)   whether the person was a minor when they began living in Australia;
(c)   the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d)   relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
The protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence

Paragraph 10.1 of Direction [41] states:
“ 10.1 Protection of the Australian community
(1)Due consideration is to be given to the Government’s objectives set out in Part 1, paragraph 5 of this Direction.
(2)The factors relevant to assessing the level of risk of harm to the community of the person’s entry or continued stay include:
(a)the seriousness and nature of the relevant conduct; and
(b)the risk that the conduct may be repeated.”
The objectives set out in Part 1, para 5 of Direction [41] are as follows:
“ 5.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2)In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3)The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.”
The seriousness and nature of the relevant conduct
Paragraph 10.1.1(1) of Direction [41] states:
“ 10.1.1 The seriousness and nature of the conduct
(1)Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. Those crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.”
Paragraph 10.1.1(2) lists “examples of offences and conduct that are considered serious”, namely:
“ (a)     murder, manslaughter, or any other form of unlawful killing;
(b)     all offences perpetrated against a child (particularly sexually-based offences);
(c)     rape and any other sexually-based offences;
(d)grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
(e)     robbery;
(f)the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs;
(g)     terrorist activity;
(h)     people smuggling, trafficking and/or harbouring or concealing;
(i)ancillary offences in respect of offences and conduct that are considered serious, including:
(i)        convictions for attempting to commit an offence
(ii)       convictions for conspiracy to commit an offence; and
(iii)convictions for being an accessory before or after the fact in respect of an offence.
(j)     organised criminal activity resulting in a conviction in Australia or elsewhere;
(k)     arson;
(l)     blackmail and/or extortion; and
(m)     serious theft.”
Paragraphs 10.1.1(3) and 10.1.1(4) relevantly state:
“(3)     The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including
(i)        the number and nature of offences;
(ii)       the period between offences; and
(iii)      the time elapsed since the most recent offence.
(4)     The following factors are also to be considered:
(a)any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b)any relevant factors the person provides as mitigating factors;
…”
Although the applicant has been convicted of 12 offences – four in Ireland in the period April–June 2007, and eight in Australia in the period from September 2009 to April 2011 – it is readily apparent, having regard to the nature of each of those offences and the sentences imposed (see paragraphs 12 and 13 above), that none of those offences can be considered to be of the nature and seriousness contemplated by para 10.1.1 of Direction [41]. Nor, in the Tribunal’s opinion, can the applicant’s criminal record as a whole be regarded as sufficiently serious to fall within the contemplation of para 10.1.1 of Direction [41].
The risk that the conduct may be repeated
Paragraph 10.1.2 of Direction [41] states:
“ 10.1.2 The risk that the conduct may be repeated
(1)The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2)The following factors are to be considered as particularly relevant to this assessment:
(a)a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b)evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c)evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.”
The matter for the Tribunal’s consideration, for the purposes of paras 10.1(2)(b) and 10.1.2 of Direction [41], is the risk that the applicant may in the future commit a serious offence, or engage in serious conduct involving harm to the Australian community, of a kind contemplated by the Government’s objectives in para 5.1, and by para 10.1, of Direction [41].
Having regard to the evidence before it, the Tribunal is satisfied that the applicant has not been convicted of any serious offences, within the meaning of para 10.1.1 of Direction [41], and has not engaged in any seriously harmful conduct of a kind contemplated by the Government’s objectives in para 5.1, and by para 10.1, of Direction [41].
Having regard to the whole of the evidence before it, and, in particular, the applicant’s own evidence and his presentation when giving that evidence, the Tribunal accepts that he is not a violent or dangerous person and it is satisfied that he has never presented, and currently does not present, a danger of serious harm to the Australian community. The Tribunal is also satisfied that any existing risk that the applicant may in the future commit a serious offence or engage in serious conduct involving harm to the Australian community is no greater than a minimal or trivial risk and one which would, in the circumstances of this case, be acceptable to the Australian community.
Conclusion
Having regard to the relevant factors referred to in para 10.1 of Direction [41], and to the whole of the evidence before it, the Tribunal attaches little, if any, weight to this primary consideration in the circumstances of this case.
Whether the person was a minor when they began living in Australia
Paragraph 10.2 of Direction [41] states:
“ 10.2 Whether the person was a minor when they began living in Australia
(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.”
By paragraph 6(1) of Direction [41], the word “minor”, for the purposes of the Direction, “has the same meaning as in section 5(1) of the Act”, namely, “a person who is less than 18 years old”.
The applicant was 21 years old when he first arrived and began living in Australia on 2 March 2009. The applicant was, therefore, not a “minor”, within the meaning of para 10.2 of Direction [41], when he began living in Australia.
In the Tribunal’s opinion, this primary consideration should be regarded as a neutral consideration in the circumstances of this case. The Tribunal, accordingly, attaches no weight to this primary consideration.
The length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity
Paragraph 10.3(1) of Direction [41] states:
“ 10.3 The length of time that a person has been ordinarily resident
(1)Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note:For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.”
The applicant was ordinarily resident in Australia for approximately six months prior to committing his first offence in Australia, namely, driving an unlicensed vehicle (for which he was fined $50) in September 2009.
It is open to the Tribunal to regard the fact that the applicant was ordinarily resident in Australia for only six months prior to engaging in criminal activity as a matter unfavourable to him and militating in favour of refusal to grant the visa: Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390 at 396–397. In the present case, however, the Tribunal, having regard to the very minor nature of the applicant’s first offence in Australia, and to the relatively minor nature of his criminal history as a whole in Australia, attaches little, if any, weight to this primary consideration.
Relevant international obligations
Paragraph 10(1)(d) of Direction [41] refers to:
“ relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).”
It is common ground that there are no relevant international obligations which arise for consideration in this case.
Other Considerations
Paragraph 11 of Direction [41] states:
“ 11. Other considerations
Note: These are not primary considerations.
(1)In reaching a decision on whether to refuse or cancel a visa, other considerations, although not primary, may be relevant and, if so, must be considered.
(2)It is appropriate that these considerations, where relevant, must be taken into account but, generally, they should be given less weight than that given to primary considerations.
…”
Paragraph 11(3) sets out a non-exhaustive list of “other considerations”.
There are no other relevant considerations which weigh against the applicant and militate in favour of refusal to grant the visa. There are, however, some other relevant considerations which, in the Tribunal’s opinion, militate against refusal to grant the visa, namely, the applicant’s ties to the Australian community and, in particular, the hardship he would be likely to experience in the event of refusal to grant the visa to him and his being removed to Ireland.
Although the applicant has no family ties to Australia, he does have employment and social ties that would be disrupted if he were removed from Australia. He has been employed by Bergen & Co, Painting Contractors, and has been very successful in that employment, having been promoted to supervisor with the responsibility of training and mentoring apprentices – a position which, according to the Manager, Adam Bergen, remains available to him upon his release from detention. The applicant has also developed an extensive and supportive social network since he arrived in Australia, as evidenced by the numerous letters of support which he tendered in evidence. His most important social connection to Australia is his very close relationship with Natasha Christidis – a relationship which would be likely to be severely disrupted, if not destroyed, if the applicant were removed to Ireland. The Tribunal attaches some weight to these considerations.
The Tribunal, however, attaches substantial weight to the consideration of the hardship which the applicant would be likely to experience in the event of his removal from Australia. That likely hardship would include:
·his physical separation from Ms Christidis and his other close friends in Australia;
·the loss of his successful and financially rewarding employment in Australia;
·the loss of the opportunity to build a new life and have a secure future in Australia; and
·being returned to Ireland where, although he has family and cultural ties and would presumably receive support from his immediate family members, his quality of life, employment opportunities and his future generally would be substantially less favourable than in Australia (see the letter from Niamh Cuthbert set out in paragraph 25 above).
It may reasonably be said that, if the applicant were returned to Ireland, this would be the result of his own wrongdoing. The Tribunal, however, considers that there were mitigating circumstances associated with the applicant’s abovementioned criminal conduct, including his youth, immaturity, naivety, and dependent personality (as discussed in Ms Willis’ report set out in paragraph 20 above).
Overall Assessment of the Primary Considerations and Other Considerations
Although, pursuant to para 11(2) of Direction [41], other relevant considerations should “generally … be given less weight than that given to primary considerations”, the Tribunal, in the circumstances of the present case, regards it as appropriate to attach greater weight to the abovementioned considerations of the likely hardship to the applicant and the disruption of his employment and social ties to Australia (which weigh against refusal to grant the visa to the applicant) than to the abovementioned applicable primary considerations. As previously discussed, in the circumstances of this case, the Tribunal attaches little collective weight to the applicable primary considerations, whereas it attaches substantial collective weight to the considerations of likely hardship to the applicant and disruption of his employment and social ties to Australia.
The overall assessment of the Tribunal, therefore, is that, having regard to the totality of the applicable primary considerations and the other relevant considerations in this case, those considerations, on balance, weigh against refusal to grant the visa to the applicant. Accordingly, the discretionary power to refuse to grant the visa pursuant to s 501(1) of the Act should not be exercised adversely to the applicant.
Conclusion
Given the Tribunal’s finding that the applicant passes the “character test” and, in the alternative, its conclusion that the discretionary power to refuse to grant the visa pursuant to s 501(1) of the Act should not be exercised adversely to the applicant, the correct or, alternatively, the preferable, outcome in this case, in accordance with Direction [41], is that the applicant’s application for the visa should not be refused under s 501(1) of the Act.
Decision
For the above reasons, the decision under review is set aside and the matter is remitted to the respondent for reconsideration in accordance with the direction that the applicant’s application for the visa is not to be refused under s 501(1) of the Act.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

[sgd D Brodie]..........
Administrative Assistant
Dated 18 April 2012

Date of hearing 16 March 2012

Representative of the Applicant Mr L Ong

Solicitors for the Applicant Munro Doig

Representative of the Respondent Mr A Gerrard

Solicitors for the Respondent Australian Government Solicitor

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/0107
Re	MARK ANTHONY WILLIAMS
APPLICANT
And	MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT

Tribunal	Deputy President S D Hotop
Date	16 March 2012
Date of written reasons	18 April 2012
Place	Perth

Date	Court	Offence	Conviction Details
16/4/2007	District Ct. 53	Driver entering a bus lane during the period of Operation of the bus lane with a vehicle other than a Omnibus or Pedal Cycle (Contrary to Section 35(5) of the Road Traffic Act, 1994)	Fine €500
24/6/2007	District Ct. 45	Fail Urine (Doctor Requirement) (S 49 Arrest)	Fine €400
3/6/2007	Intoxication in Public Place (Contrary to Section 4 of the Criminal Justice (Public Order) Act, 1994 as amended by Section 22 of the Intoxicating Liquor Act, 2008)	Fine €100
3/6/2007	Threatening/Abusive/Insulting Behaviour in a Public Place	Fine €200.

Date of hearing	16 March 2012
Representative of the Applicant	Mr L Ong
Solicitors for the Applicant	Munro Doig
Representative of the Respondent	Mr A Gerrard
Solicitors for the Respondent	Australian Government Solicitor