Molloy and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2712

Molloy and Minister for Immigration and Border Protection (Migration) [2017] AATA 2712 (5 December 2017)

Division:                  GENERAL DIVISION

File Number:           2017/5776

Re:Dean Molloy

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member Britten-Jones

Date:5 December 2017

Place:Adelaide

The decision under review is set aside and substituted with a decision that the visa application should not be refused on character grounds.

...............................[Sgd].........................................

Senior Member Britten-Jones

CATCHWORDS

MIGRATION – visa refusal – skilled-nominated visa – whether person passes the character test – consideration of “criminal” conduct at lower end of the spectrum – whether there is a risk of engaging in criminal conduct - whether discretion to refuse to grant a visa should be exercised – protection of the Australian community from criminal and other serious conduct – primary and other considerations under Ministerial Direction No. 65 – decision under review set aside.

LEGISLATION

Migration Act 1958 (Cth), s 501

CASES

Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774

SECONDARY MATERIALS

Direction No. 65 – Migration Act 1958 – Direction under section 499, Visa Refusal and Cancellation under s 501

REASONS FOR DECISION

Senior Member Britten-Jones

5 December 2017

INTRODUCTION

1. This is an application for a review of a decision to grant a visa under s 501(1) of the Migration Act 1958 (the Act).  The decision to refuse the visa was made by a delegate of the Minister on 8 September 2017. 

2. Notice of the refusal was given by letter dated 13 September 2017 which provided that the applicant had failed to satisfy the Minister that he passed the character test and that the particular ground relied upon was subparagraph 501(6)(d) of the Act:

   in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:

   (i)     engage in criminal conduct in Australia;

   (ii)    …

3. At the hearing for review the respondent advised that a further ground was relied upon namely that contained within subparagraph 501(6)(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.

   ISSUES

4. The issues for consideration by the Tribunal are:

   (a)Whether the applicant passes the character test as defined in s 501(6) of the Act; and

   (b)If not, whether his visa application should be refused, taking into account the relevant considerations in Ministerial Direction No 65 – visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

   BACKGROUND FACTS

5. The applicant is a citizen of the Republic of Ireland who first entered Australia in 2010 on a working holiday visa.  He lived in Darwin and had been working as a roofing contractor until he voluntarily departed Australia on 29 September 2017 due to the visa refusal decision.

6. Since coming to Australia the applicant has participated in community life by working, playing and coaching soccer and making numerous friendships including with his current partner who he met in 2015 and has been in a close relationship with for over two years.  She gave oral evidence at the hearing. 

7. Whilst in Australia the applicant has been convicted of offences arising from two separate incidents.

8. The first incident resulted in convictions being recorded in the Darwin Court of Summary Jurisdiction on 15 June 2012.  The offences and court results are set out below:

Offence	Court result
Not stop at stop sign	Convicted. Fined $100.
Drive unregistered motor vehicle. Drive uninsured motor vehicle	On both charges.  Convicted.  Fined $700
Drive a motor vehicle while unlicensed	Convicted.  Fined $100
Drive medium range blood alcohol content	Convicted.  Fined $300.  Licence disqualified for six months.

1. The applicant gave evidence that on 20 May 2012 he was out with friends watching a football game and he consumed three drinks and got in his car to drive home.  He failed to stop at a stop sign and was picked up by the police and returned a positive result to a breath test.  Enquiries revealed that his vehicle was unregistered and uninsured and that his drivers licence had expired.  The applicant explained that his license was out of date by 10 days which he did not realise at the time.  With respect to the registration the applicant explained that on the day of incident he had towed his vehicle to a mechanic who was able to repair the vehicle then and there and make it roadworthy.  The mechanic told him that he could drive the vehicle because a period of one day’s grace was given with respect to registration.  The applicant then drove his vehicle to the Department of Motor Vehicles but it was closed.  He intended going back to the Department of Motor Vehicles the following day.  In the meantime, the applicant drove to a hotel where he consumed his drinks and then drove home.  The applicant maintained his story under cross examination and he rejected the respondent’s assertion that his story was implausible.

2. I do not consider that his story is implausible.  Although the applicant gave his evidence by telephone I assessed him as credit worthy and a witness of truth.  His evidence was consistent between his evidence in chief and his cross examination.  He answered questions put to him candidly and was prepared to make appropriate concessions.  He said that he should not have got in the car and driven and that he regretted his actions.  He has a better awareness of the seriousness of his conduct because he completed a two day training course described as the Back on Track Education Program.  The applicant described the impact that this program had on him in particular making him aware of the potentially serious consequences of drink-driving.

3. The second incident was of a more serious nature.  On 3 September 2013 the applicant was convicted in the Darwin Court of Summary Jurisdiction of three offences with the following results:

Offence	Court result
Possess dangerous drug – trafficable quantity	Convicted.  Fined $500.
Breach of bail granted	Convicted.  Fined $150
Supply Schedule 2 substance	Convicted.  Fined $500

1. The applicant gave evidence that some friends of his from down south joined him in Darwin for a fishing trip.  He was out with his friends on the night before the fishing trip and he decided to purchase some ecstasy for the group.  He said it was a spontaneous thing and that one of his friends had mentioned it and he was foolish enough to go and purchase it.  It cost him $900 to purchase the three grams which came in a powder form.  He said it was not his idea and that it was suggested by one of his friends.  The drugs were obtained across the road from the hotel where they were drinking.  The applicant gave evidence that he had never carried drugs before and that he became really nervous when he returned to the hotel with the drugs.  This was particularly so because the police attended the hotel with respect to an unrelated incident.  The applicant was seen passing the drugs over to one of his friends and was arrested.

2. The applicant said in evidence that he had no excuse for his behaviour and that no one had twisted his arm.  He said it was a spur of the moment thing which he now regrets.  He took full responsibility and fully cooperated with the police.  He received a fine and was granted bail on condition that he sign-in every Monday and Thursday at the police station.  He did so but was late on one occasion when he overslept after work.  He rang and notified the police station that he was on his way but he arrived between 5 and 10 minutes late.  He attended court on the next day where his breach of bail was recorded.  He was fined $150.

3. One of the applicant’s close friends with whom he lived for some time whilst in Darwin provided a positive reference letter and said that he had never known the applicant to be involved in drugs or drinking too much.  The applicant said that this incident with the ecstasy was a once off event and that he has never otherwise been involved with drugs or convicted of any drug related charges.  I accept that evidence.

4. There was a third incident on which the respondent relied which took place back in Ireland in 2010 when he was twenty-two years old.  He was at the pub watching the champions’ league football with his friends and consumed three pints of beer.  He did not think he was over the limit so he drove home but on the way he was breathalysed and blew over the limit by a slight amount.

5. With respect to these three incidents the applicant expressed genuine remorse and regret and accepted responsibility for the seriousness of them.  He understands that he should not have driven after drinking.  He realises how stupid it was for him to purchase the ecstasy for his friends who came up for the fishing trip.  His conduct has never been dishonest.  For example he admitted in his application for a skilled migration visa that he had been convicted of offences and gave the details.

   LEGISLATIVE FRAMEWORK

6. Section 501(1) of the Act provides that 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 by subsection 501(6). As set out above, the respondent relies on subsections 501(6)(c) and (d)(i) to assert that the applicant fails the character test.

7. If the applicant does not pass the character test, this enlivens a discretion to refuse to grant the visa.  I will consider first the threshold issue of whether the applicant passes the character test. 

   The Character Test

8. The character test relied upon by the respondent requires a consideration of whether the applicant “is not of good character” having regard to the matters in subsection 501(6)(c).  The terms of that provision were considered by Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs at [49] and following:[1]

   [49] The construction of s 501(6)(c) depends on the context and purpose of the Act and, in particular, of s 501. Section 501(6) defines the limits of the discretion Parliament has conferred on the Minister. As set out above, the other paragraphs of s 501(6) require the Minister to make findings of fact, or to form opinions or suspicions based on reasonable grounds, before a discretion to refuse a visa will be conferred. Section 501(6)(c) requires the Minister to have regard to the visa applicant’s past and present criminal conduct and/or past and present general conduct and then determine as a fact whether that person is not of good character.

   [50] Unless such a finding of fact is made by the Minister the visa applicant “passes the character test” and thereby satisfies the Minister under s 501(1). If the Minister finds that the visa applicant is “not of good character” that person “does not pass the character test” and accordingly does not satisfy the Minister under s 501(1). It is a finding of fact in which the meaning of the words “not of good character” is all important.

   [51] The words “of good character” mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character. (See: Irving v Minister of State for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 431‑2; 139 ALR 84 at 94).

   [52] A finding that a person is “not of good character” requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197; 153 ALR 463 at 472; 45 ALD 136 at 143-4).

   [53] The distinction between “criminal” and “general” conduct as indicia of absence of good character may suggest that the word “criminal” is likely to carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions. (See: Sir William Blackstone, Commentaries on the laws of England, vol 4, Ch 5; Shorter Oxford English Dictionary, p 456 – “crime”, “criminal”).

   [54] Context, however, is important and may provide a broader meaning for such a term in appropriate circumstances having regard to the purpose to be served. (See: Marcel Beller Ltd v Hayden [1978] 3 All ER 111).

   [55] For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character. The point at which recent criminal conduct, (as the term “present criminal conduct” is to be understood), becomes “past criminal conduct” must be a matter of judgment. If there is no recent criminal conduct that circumstances will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is a person not of good character. (See: Baker at FCR 194–195; ALR 469; ALD 141).

   [56] Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.

   [1] [2004] FCA 774, (2004) 83 ALD 411.

9. In applying the above approach with respect to whether the applicant is not of good character pursuant to s 501(6)(c) I make the following findings.

10. The relevant conduct occurred in the past.  The applicant has not offended for over four years. 

11. The two incidents of drink driving come within the lower end of the spectrum in terms of seriousness of offending.  That is not to say that drink driving is not of itself a serious offence with very real consequences in the community, but it does not involve the degree of moral culpability or turpitude associated with other offences mentioned within subsection 501(6) such as gang related criminal conduct, people smuggling, genocide, or sexually based offences involving a child.

12. With respect to the drug related offences, again they are at the lower end of the spectrum.  There was no commercial enterprise or personal gain involved with the offending.  Although the applicant was charged with being in possession of a trafficable quantity of a dangerous drug it was not suggested that he was involved in drug dealing or providing drugs to others in the community except his group of friends.  It was a once off incident which appears from the applicant’s evidence, and the numerous character references given, was out of character.

13. I find that the nature of the “criminal” conduct with respect to the three separate incidents involved a very low degree of moral culpability or turpitude. 

14. An assessment of the applicant’s past and present general conduct reveals a person who for most of his life has stayed out of trouble and who has contributed positively to the community by maintaining steady employment as a roofing contractor.  Also by participating in his local football club both by playing at a high level and coaching junior teams and by being involved in fundraising events associated with the club.

15. Due regard must be given to the applicant’s past and recent good conduct.  The isolated incidents of offending, occurring as they did in 2010, 2012 and 2013, must be assessed in the overall context of his otherwise good behaviour.

16. The applicant’s past criminal conduct and his past and present general conduct are not sufficient to establish that the applicant at the time of the decision was not then of good character.

17. The second limb of the character test relied upon by the respondent requires an analysis as to whether if the applicant remained in Australia there is a risk that he would engage in criminal conduct as set out in subsection 501(6)(d)(i).

18. Adopting a contextual and purposive approach to the interpretation of this provision I consider that the criminal conduct referred to in subsection 501(6)(d)(i) must carry the common meaning of the more serious offences than misdemeanours that involve lesser faults and omissions such as traffic offences.[2]  

    [2] Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 at [53].

19. There is no evidence that would suggest a risk of the applicant engaging in any criminal conduct of a more serious nature than that for which he was convicted, namely drink driving and drug possession.  As previously stated, these offences were at the lower end of the spectrum and therefor it is not established that there is a risk that the applicant would engage in any criminal conduct in the middle to upper range of the spectrum of seriousness for criminal conduct.

20. Guidance with respect to that aspect of the character test embodied in s 501(6)(d)(i) is found in the Direction in Section 2 of Annex A at paragraph 6 and 6.1.  With respect to establishing “a risk” paragraph 6(2) provides that there must be evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in criminal conduct.  Further as per paragraph 6(3) it is not sufficient to find that the person has engaged in criminal conduct in the past.  There must be a risk that the person would engage in the future in criminal conduct.

21. I find that there is not sufficient evidence to establish a risk that the applicant would engage in criminal conduct in Australia in the future.  The only evidence to the contrary is the fact of the convictions flowing from the three separate incidents.  That evidence must be seen in the context of there being no offending for the last four years and his otherwise exemplary behaviour in the community, namely, as previously stated, the applicant’s consistent employment as a roofing contractor, his participation in the local football club and associated fund raising activities and his strong relationships with his girlfriend, his friends and his god daughter.  When one looks at the circumstances as a whole there is insufficient evidence of anything more than a minimal or remote chance that the applicant would reoffend.

22. For all of the reasons above there is insufficient evidence to establish that the applicant does not pass the character test. Accordingly, the threshold issue embodied within s 501(1) is not made out. In these circumstances there is no need to consider the discretion as to whether the grant of the visa should be refused.

23. In the event that I am wrong and that the applicant does not pass the character test then I would not exercise the discretion to refuse to grant the visa to the applicant for the reasons that follow.

    DIRECTION NO. 65

1. In an exercise of the power given by s 499 of the Act, the Minister issued Direction No. 65 on 22 December 2014 (the Direction).  The Direction comprises:

   … the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to ... refuse a non-citizen’s visa under section 501 ....

2. Paragraph 6.1 provides:

   Objectives

   (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

   (2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

   (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

   (4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

3. Paragraph 6.2 provides general guidance in exercising the discretion to refuse the grant of a visa:

   6.2 General Guidance

   (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

   (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

   (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

4. The Principles are set out in Paragraph 6.3:

   6.3 Principles

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

   (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

5. The manner in which the discretion is to be exercised is set out in Paragraph 7.  Informed by the principles in Paragraph 6.3, the decision-maker must take into account the considerations set out in Part B of the Direction. These considerations for a visa applicant include “Primary” considerations at paragraph 11 and “Other” considerations at paragraph 12.  I will refer to these considerations in detail later in these reasons.

6. Paragraph 8(1) provides that a visa applicant “… should have no expectation that a visa application will be approved.”  The paragraph at 8(4) further provides that “primary considerations should generally be given greater weight than the other considerations” and that at 8(5) “one or more primary considerations may outweigh other primary considerations”.

7. Paragraph 11(1) provides that in deciding whether to refuse a non-citizen’s visa, the following are primary considerations:

   (a)Protection of the Australian community from criminal or other serious conduct;

   (b)The best interests of minor children in Australia;

   (c)Expectations of the Australian community.

8. The Direction then elaborates with respect to the protection of the Australian community and provides at paragraph 11.1(1) as follows:

   When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct.  Decision-makers should also give consideration to:

   (a)The nature and seriousness of the non-citizen’s conduct to date;

   and

   (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

9. The Direction further elaborates with respect to the nature and seriousness of the conduct at paragraph 11.1.1 and with respect to the risk to the Australian community at paragraph 11.1.2. 

   The protection of the Australian community – a primary consideration

10. The conduct engaged in by the applicant was at the lower end of the spectrum in terms of seriousness.  It involved a low degree of moral obloquy or turpitude.  There were no immediate victims.  The offences do not fit within the category of crimes referred to in paragraph 11.1.1(1)(a) or (b).  The applicant was fined for his offences and no custodial sentence was imposed.  The applicant’s offending was infrequent and there is no suggestion of a trend of increasing seriousness.  The applicant has not provided any false or misleading information to the Department and, given the nature of the offending, the fact that the offence of drink-driving was repeated once is not a matter of any weight.

11. With respect to the risk to the Australian community referred to in paragraph 11.1.2 of the Direction the applicant does not represent an unacceptable risk of harm.

12. There was little or no harm done to individuals or the Australian community by the past offending and, albeit there is a potential for harm arising from drink-driving and possessing drugs the nature of the harm in this case is at the lower end of the spectrum of harm arising from criminal conduct.

13. The applicant has undertaken a course of rehabilitation with respect to his drink-driving and has been employed and participating gainfully in the community since his most recent offence in 2013.  These are factors that weigh heavily in favour of the applicant under paragraph 11.1.2(3)(b).

14. In conclusion with respect to the protection of the Australian community from criminal or other serious conduct I consider that this factor is a neutral consideration in deciding whether to refuse the applicant’s visa.

    The best interests of minor children in Australia – a primary consideration

15. There is evidence of a close and ongoing relationship between the applicant and his god daughter who is about five years old.  The god daughter has lived in Sydney for the last two years but before then lived in Darwin and spent a significant period of time with the applicant who was living with her family on and off since 2010.  The evidence from the father of the god daughter by way of a reference letter is that the applicant is her favourite “uncle” and that his moving overseas would cause hardship to her.  I take into account that the god daughter no longer lives in Darwin but I note the applicant’s evidence that he has visited her in Sydney on four or five occasions since she left Darwin and that they communicate regularly by phone.  I give this factor less weight because the relationship is non parental and because they no longer live in the same city.

16. In summary this is a factor that weighs slightly in favour of the applicant.

    Expectations of the Australian community – a primary consideration

17. Whilst the Australian community expects non-citizens to obey Australian laws whilst in Australia, the laws that were breached were at the lower end of the spectrum of seriousness of criminal conduct and the risk of further offending is low. 

18. This factor is neutral and does not weigh against the applicant.

    Other considerations

19. I note that paragraph 12 of the Direction refers to visa applicants but that paragraph 12(1) refers to the decision as to whether to cancel a visa, which does not seem relevant to a visa applicant.  Nevertheless I will deal with these other considerations in so far as they might be relevant.  The only relevant consideration under paragraph 12 of the Direction would be the impact on family members.  The applicant has a brother living in Darwin and a sister living in Sydney.  The sister’s letter of support speaks in very favourable terms about her older brother and the fact that they grew up together in tight knit community in a small seaside town in Ireland and how he has assisted her on numerous occasions in various ways over the years.  She talks about his recent deportation causing a great deal of pain and devastation for her.  Whilst the visa refusal has clearly had a significant impact on the sister I do not give this factor any weight. 

    CONCLUSION

20. If I were to exercise a discretion under the Direction I would do so in favour of granting a visa to the applicant.

    DECISION

21. The decision under review is set aside and substituted with a decision that the visa application should not be refused on character grounds.

I certify that the preceding 55 (fifty -five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

......................[Sgd]............................................

Administrative Assistant

Dated: 5 December 2017

Date(s) of hearing:	29 November 2017
Advocate for the Applicant:	Ms Y Cowles
Advocate for the Respondent:	Mr P d'Assumpcao
Solicitors for the Respondent:	Australian Government Solicitor