Moses and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 291
•2 March 2023
Moses and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 291 (2 March 2023)
Division:GENERAL DIVISION
File Number: 2022/6093
Re:Naomi Moses
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member D. Cosgrave
Date:2 March 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes it with a finding that the Visa Applicant passes the character test pursuant to section 501(6) of the Migration Act 1958 and his visa application should not be refused under s 501(1) of the Act.
............[SGD]..........
Member D. Cosgrave
Catchwords
MIGRATION – Refusal to grant visa – citizen of United Kingdom – failure to pass good character test – risk of engaging in criminal conduct – whether Applicant passes the character test – Ministerial Direction No. 90 applied – found the Applicant passes the character test- discretion in s 501(1) of the Migration Act not enlivened- delegate’s decision set aside and substituted.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774
Goldie v Minister for Immigration and Multicultural Affairs [1999] FCA 1277Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Irving v Minister for Immigration, Local Government& Ethnic Affairs (1996) 68 FCR 422
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
Migration Regulations 1994 (Cth)
REASONS FOR DECISION
Member D. Cosgrave
2 March 2023
INTRODUCTION
The Applicant seeks a review, under s 500 of the Migration Act 1958 (the Act), of the Respondent’s 30 June 2022 decision to refuse to grant a Partner (Provisional) (Class UF) (Subclass 309) visa (the visa) to her husband (the Visa Applicant) by applying
s 501(1) of the Act on character grounds.[1]
[1] Exhibit 1 (bookmarked T1-T45), T4, pages 14 & 17. T documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The Applicant is the sponsor in the visa application.[2] The Applicant and the Visa Applicant are married[3] and currently reside offshore.[4]
[2] T6, page 41.
[3] T8, page 62.
[4] T4, page 26, paragraph [53].
The hearing was held by video at the Tribunal’s Brisbane Registry on 15 and 16 November 2022. The Applicant was represented by Ms Rees, her mother. The Respondent was represented by Ms Allen, a legal practitioner with Sparke Helmore Lawyers.
Unless the context indicates otherwise, passages quoted in bold font and underlined have been emphasised by the Tribunal.
FACTS
The Visa Applicant’s Criminal History
The Visa Applicant’s criminal history is set out in the following:
(a)United Kingdom Police Certificate (dated 29 March 2022);[5].
[5] T5, pages 30-31.
(b)Application for migration to Australia by Partner (dated 29 July 2019);[6] (the Application).
[6] T6, pages 34-57.
(c)Incoming Passenger Card (dated 30 April 2018);[7].
[7] T7, page 58.
(d)Personal Circumstances Form (dated 2 June 2022);[8].
[8] T8, pages 69 and 72.
(e)Jamie Moses’ Character Declaration (undated);[9].
[9] T9, pages 74-77.
The facts of the matter are:
(a)The Visa Applicant is a 38-year-old citizen of the United Kingdom (UK) (born 11 January 1985).
(b)He has travelled to Australia on one occasion, between 30 April 2018 and 26 May 2018, as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa.[10]
[10] T41, page 157.
(c)The United Kingdom Police Certificate states that Mr Moses has been convicted of the following offences:
(i)(As a juvenile) On 2 December 1995: burglary and theft – non dwelling and damage property value of damage 5000 or less, which was disposed of by way of caution.
(ii)(As a juvenile) On 23 August 1999: attempt/destroy or damage property at a value unknown, which was disposed of by way of conditional discharge (12 months).
(iii)On 29 July 2003: driving a motor vehicle with excess alcohol, which was disposed of by way of fine (GBP100) and driving disqualification (12 months).
(iv)On 30 July 2004: driving a motor vehicle with excess alcohol, using vehicle while uninsured and driving whilst disqualified, which was disposed of by way of community punishment order (80 hours), community rehabilitation order (12 months), fine (GBP100) and driving disqualification (3 years).
(v)On 18 January 2005: breach of community and rehabilitation order, which was disposed of by way of fine (GBP50).
(vi)On 17 March 2008: driving a motor vehicle with excess alcohol and failing to stop after accident, which was disposed of by way of community order (12 months with programme and supervision requirement and unpaid work for 240 hours) and driving disqualification (3 years, to be reduced to 9 months if course completed by 1 April 2010).
(vii)On 19 June 2008: breach of a community order, which was disposed of by 40 additional hours of unpaid work.
(d)On 29 July 2019, the Visa Applicant applied for the visa which is the subject of these proceedings on the basis of his relationship with the Applicant.[11]
[11] T6, pages 34-57.
(e)On 30 May 2022, the Respondent issued the Visa Applicant with a notice of intention to consider refusal of the visa under s 501(1) of the Act.[12]
[12] T44, pages 160-164.
(f)The Visa Applicant and Applicant submitted evidence and submissions in response to that notice.
(g)On 30 June 2022, the delegate decided to exercise the discretion under s 501(1) of the Act to refuse the visa on the grounds that the Visa Applicant failed the character test.[13]
[13] T4, pages 12-29.
(h)On 16 June 2022, the Visa Applicant applied for review of the decision in the Tribunal.[14]
[14] T12, pages 3-10.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and Section 500(1)(b) of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3) of the Act, read in conjunction with sections 501(6) and 501(7) of the Act , oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test.
The ‘character test’ is defined in section 501(6) of the Act:
“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
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
(b) the Minister reasonably suspects:
(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal conduct; or
(ba) the Minister reasonably suspects that the person has been or is involved in conduct constituting one or more of the following:
(i) an offence under one or more of sections 233A to 234A (people smuggling);
(ii) an offence of trafficking in persons;
(iii) the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern;
whether or not the person, or another person, has been convicted of an offence constituted by the 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 in Australia, there is a 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 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; or
(e)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; or
(ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence,
even if the person was discharged without a conviction; or
(f) the person has, in Australia or a foreign country, been charged with or indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(v) a crime that is otherwise of serious international concern; or
(g)the person has been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979); or
(h) an Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
Otherwise, the person passes the character test.”
(Emphasis added)
The Direction
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act.
Decision makers under the Act, except for the Minister acting personally, must apply Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[15]
[15] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, at [4] (Rares, O’Callaghan and Jackson JJ).
The Tribunal is bound by section 499(2A) of the Act to comply with the Direction.[16]
[16] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para 38.
The Direction contains both mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[17]
[17] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles set out in the Direction inform the decision-making process:[18]
[18] Paragraph 5.2 of the Direction.
1Australia 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.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that, informed by the above principles, a decision-maker must consider Paragraphs 8 and 9 of the Direction, where relevant, to the decision.
Paragraph 8 of the Direction provides the following primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The best interests of minor children in Australia; and
(4)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia; and
(ii) Impact on Australian business interests.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
This does not preclude the Tribunal giving the other considerations of Paragraph 9 equivalent, or even greater weight than a primary consideration, which turns on the specific circumstances of each case.[19] The weighing process is determined by decision-makers exercising the relevant power under the Act.[20]
[19] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J).
[20] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
THE ISSUES
The Tribunal has the following issues to consider in this matter:
(a)whether the Visa Applicant passes the character test as defined in Section 501(6) of the Act; and
(b)if the Visa Applicant does not pass the character test, then whether a consideration of the discretion in Section 501(1) finds another reason why the decision to refuse to grant a partner visa to the Visa Applicant should be set aside .
THE EVIDENCE
The following is a summary of the evidence before the Tribunal in this matter.
The evidence referred to below comprises documentary evidence collated for the purposes of Section 501G of the Act and tendered into evidence, documents tendered by the Applicant[21] and evidence given by the witnesses at the hearing in response to questions in examination-in-chief, re-examination, under cross-examination and from the Tribunal.
[21] Exhibits 2 and 4.
Documentary evidence
The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’.
The following documents were tendered into evidence:
(a)Exhibit 1, T Documents.
(b)Exhibit 2, Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC).
(c)Exhibit 3, Respondent’s Statement of Facts, Issues and Contentions (Respondent’s SFIC).
(d)Applicant’s Submissions in Reply.
The Tribunal will now consider the documentary evidence.
Character References
The Visa Applicant provided several character references from family members and other people.
Having reviewed these references, the Tribunal has considered how the non-family members characterise the Visa Applicant.
Steffan Rogers
He is a site manager with the Visa Applicant’s employer and at the time of providing the statement he claims to have known the Visa Applicant for approximately 9 years.
He provided two statements.
He states in his letter dated 9 May 2022:[22]
[22] T21, page 100.
“Over the years I have witnessed him go from strength to strength. I would say without hesitation Jamie is a reformed character and a highly respected member of the community. He is trustworthy, reliable, disciplined and a valued member of our staff. On a number of occasions he has been called upon to different construction sites to cover absences. He is always willing to help out, no matter the distance. He is a resilient character who has others' best interest at heart. I would highly recommend Jamie to any construction company. He is hard working, approachable and friendly.
Jamie is a committed family man who has worked hard during the years to build himself a family and a home. He longs to see his family in australia (sic).”
He states in his letter dated 4 September 2022:[23]
[23] Exhibit 2.1.
“My name is Steffan Rogers. | am the Site Manager of Edenstone Homes in Wales, UK. I have known Jamie for over 9 years. He is a telescopic handler and also site assistant manager. Over the years he has developed as a strong trustworthy member of my team. His character is disciplined and | can rely on Jamie for anything. He is willing to help and through covid and waiting his visa application has shown resilience and built his character to be patient and even stronger. He is a valued member of my staff. Paperwork is not our forte in construction, especially being a forklift driver.
Jamie has explained to me he made mistakes on his application and the boarding card. Jamie would not have done this on purpose, it is not in his character to lie. He has worked under my supervision for over 9 years and he is not a liar, he would have misinterpreted what was being asked. | know he provided documentation of his convictions when Naomi and Jamie found out that even if a conviction is spent for Australian documentation, you still have to declare all, which Jamie did. | can see he is totally devastated by his mistake, but from my part, Jamie would have done this as an honest mistake.”
Russell Longson
He is a Custodial Correctional Officer in Townsville and has known the Visa Applicant for approximately 5 years.
He states in his letter dated 29 August 2022.[24]
[24] Exhibit 2.2, Attachment 3.
“Jamie showed me he was committed, respectable, loving and supportive to both [Visa Applicant’s son] and Naomi. Jamie is a hard worker and supports Naomi and [Visa Applicant’s son].
It is my understanding Jamie answered two questions wrong on 1. Boarding card 2. Application for partner visa. On speaking to the family and Jamie, they genuinely believed when a conviction was "spent" they did not have to declare this. On the application, it is my understanding, they believe the same, also as the question states, do you have convictions in "other countries", as he does not have any convictions outside the UK, Jamie thought he was entering correctly, as he does not have any convictions in "other countries". From knowing Jamie and the whole family, I see this was a genuine mistake. Without a doubt I am convinced this was unintentional, as Jamie provided his convictions when asked again. His character is wholesome and worthy. He causes no threat to the Australian community.”
Martin Shrewsbury[25]
[25] Exhibit 2, 2.2, page 7.
He appears to be a psychologist who has seen the Visa Applicant professionally.
He notes that:
(a)the Visa Applicant’s driving ban did not affect his ability as a forklift operator.
(b)The Visa Applicant is self-aware and openly submitted his United Kingdom Police Certificate in the Application, supporting a view that the wrongfully answered questions were completed in error.
(c)He has no concerns about the Visa Applicant’s recidivism due to his family.
Oral Evidence
The witnesses who gave evidence during the hearing were:
(a)The Visa Applicant: Jaimie Moses.
(b)The Applicant: Naomi Moses.
The Visa Applicant’s evidence.
Key aspects of the Visa Applicant’s evidence are described below:
Examination-in-Chief
The Visa Applicant recounted the circumstances of how he, his mother-in-law and the Applicant failed to answer the Application’s question regarding convictions correctly.
He confirmed that he is currently working and had recently completed an NVQ Level 6 in site management.
Cross-Examination
He agreed that the United Kingdom criminal record was inaccurate statement of his criminal history and clarified the comment in the Personal Circumstances Form where he said that his last two convictions were removed due to good behaviour.[26] Clarification was that it was the unpaid work requirement and the disqualification from driving that were removed from the record.
[26] Transcript, page 7, lines 5-21.
He conceded that most of his offences were driving offences or drink driving offences and agreed that these are serious offences.
He stated that he first started consuming alcohol around the age of 18 and would consume at weekly. He described what he learned in the drink impaired drivers programme in 2005 which revolved around the seriousness of drink-driving and the impacted has.
He conceded that after he completed the course in 2005, he committed two further offences of driving a motor vehicle with excess alcohol.
He stated that he does currently drink but not much and on special occasions when he would have one to two drinks, possibly with a meal.
He advised that he had had five one-hour sessions with Martin Shrewsbury who had also received copies of his criminal record.
Referencing the Visa Application, he stated that he mis-read the question regarding convictions.[27]
[27] T6, page 54.
He qualified this by adding:
‘Allen: Yes, but the question specifically says, “Including any conviction which is now removed from official records”?
VA: Obviously - yes - obviously I can see now because you’ve just pointed it right out to me. But it was a mistake, obviously we didn’t see it, because we all - we all were in a little bit of a rush, we wanted to get to Australia as soon as we can. So I think we just misread, we definitely misread that question, we haven’t done this on purpose.’[28]
[28] Transcript, page 10, lines 32-38.
He acknowledged the importance of the Application:[29]
[29] Transcript, page 10, line 40 – page 11, line 19.
‘Allen: But you understood the importance of this application, didn’t you?
VA: Yes, and I also sent my police check along. So I don’t why I would send a police check too if I’m going to lie about my criminal record. Because it’s all on there.
Allen: And on page 57, you selected yes to the declaration that you have read and understood the information provided?
VA: Yes.
Allen: And that you have filled out complete and correct information in every detail on this form?
VA: Yes, but when I - well obviously I read it, and I thought I read and understood it. So I ticked read and understood, but I obviously didn’t read and I didn’t understand that question which I, at the time, I thought I did but I didn’t.
Allen: Mr Moses I’m going to suggest to you that your explanations for why you put no to that question are implausible, what would you say to that?
VA: Well, I’m only human, we all make mistakes don’t we.
Allen: But there seems to be a mistake that you make (indistinct)?
VA: Yes, for the same reasons as where - but why would I give my police record into if I’m going to lie? It’s obviously going to go for my police record. If I was going to lie then I wouldn’t have sent my police record to you, I would have hidden away.
Allen: I’m going to suggest to you that you purposely ticked no to that question, what would you say to that?
VA: No, that’s a lie.’
The Applicant
Key aspects of the Applicant’s evidence are described below:
Examination-in-Chief
The Applicant described her mental health and its impact on her daily life:[30]
“Rees: Can you tell me, have you worked since you’ve been married to Jamie and can you tell me why you haven’t worked and why you are unable to go, you know, go out on your own and how you wouldn’t be able to catch a plane on your own?
A: I haven’t worked since I’ve been with Jamie. I haven’t worked in about 10 years. It’s just completely overwhelming. The struggle to just get out of bed every day is enough, and to just deal with life on its own, and throwing work into that mix is just something I can’t fathom, you know. So I can barely go to a supermarket on my own. I don’t do it. I have Jamie with me, or my brother with me, you know. So getting on a plane would not be something I would ever even think of doing.”
[30] Transcript, page 24, line 39 – page 25, line 2.
Cross-Examination
Addressing the Tribunal’s questions, the Applicant described her account of how the Incoming Passenger Card was answered incorrectly:[31]
“Tribunal: I’d ask you to help me here, Ms Rees gave an account of how the box on the passenger form came to be ticked. You have given an account. Can you recall which one of you ticked the box?
A: If I can just look at it, I’ll recognise the writing. Very hard to say because the first ‑ all the boxes that have been ticked or crossed seems to be my mother’s handwriting, but then, the next bit underneath is mine. So it was one of us, but she would have definitely ‑ if it was my mother, we would have definitely gone through it together and with Jamie. He wouldn’t have signed anything that he didn’t agree to.
Tribunal: Again, how did it come to happen that you were ‑ there was a collective effort to fill in the form rather than individually by Mr Moses?
A: Because that ‑ I don’t know. I guess my ‑ my ‑ well, my husband is more of a hands‑on kind of person and he’s not great with forms, so you know, me and my mum just helped.”
[31] Transcript, page 30, lines 26 – 40.
THE TRIBUNAL’S assessment OF THE ORAL TESTIMONY
The Tribunal found both the Visa Applicant’s and the Applicant’s oral testimony can be characterised as straightforward, honest and helpful in terms of assisting the Tribunal in elucidating evidence and understanding the Visa Applicant’s criminal conduct and his failure to correctly address that conduct in terms of convictions on the Application and the Incoming Passenger Card.
The Tribunal will now apply its consideration of the oral testimony, together with the documentary evidence and both parties’ submission to addressing the key issues in this matter.
APPLYING THE DIRECTION
The Tribunal must now weigh the evidence in accordance with the Direction to address the key issues identified above.
The Character Test
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294 approved the reasoning in Viane[32] and at [27] identified the following principles as relevant to the statutory task conferred by s 501CA(4):
“… (1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…”
[32] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
The Tribunal will consider the character test with reference to the following:
(a)From Section 1 of Annex A of the Direction:
1Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decisionmaker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test.
2Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
3Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.
…..
(Emphasis added)
(b)Section 501(6)(d)(i) of the Act requires the decision-maker to assess whether, if the Visa Applicant is allowed to enter or remain in Australia, there is a risk that he would engage in criminal conduct in Australia i.e.
“(d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i) engage in criminal conduct in Australia; or”
(c)Further guidance is provided in paragraphs 6 and 6.1 of Section 2 - Application of the Character Test, of Annex A of the Direction.
(d)Paragraph 6 of Section 2 of the Direction states:
“Risk in regard to future conduct (section 501(6)(d))
1A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501 (6)(d) of the Act. The types of conduct specified are discussed below.
2The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501 (6)(d) of the Act.
3It is not sufficient to find that the person has engaged in conduct specified in paragraph 501 (6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.”
(e)Paragraph 6.1 of Section 2 of the Direction states:
“Risk of engaging in criminal conduct in Australia (section 501 (6)(d)(i))
1A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
2The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.”
The Parties’ Submissions
The Applicant submitted that the finding by the delegate that there is a risk that the Visa Applicant would engage in criminal conduct is unreasonable and failed to take account or give due weight to the following factors:
(a)It has been nearly 10 years since his last conviction and in that period the Visa Applicant has changed his life significantly.
(b)These changes involve risk mitigation and management factors such as his wife and son and meaningful relationships he has with them.
(c)An additional factor to the above that both mitigates and manages any risk that he would engage in criminal conduct is the extent to which he cares for his wife and helps her manage her mental health.
(d)A further set of risk mitigation and management factors comes into play with his career and training in construction and site management and the responsibility involved with being an assistant site manager, a safety officer and a licensed forklift driver.
The Respondent contended that the Visa Applicant does not pass the character test on the ground of Section 501(6)(d)(i) of the Act. The Respondent did not propose that any other subsections of s 501 (6) apply and the Tribunal is satisfied that none of them do.
The Respondent correctly submits that determining whether there is a risk that the Visa Applicant would engage in criminal conduct in Australia involves an evaluative judgement.
The current formulation of the test, reflected in paragraph 6 (2) of the Annexure of the Direction states that the ground will be enlivened if "there is more than a minimal or remote chance" of the conduct in question occurring. A low risk of reoffending is sufficient to engage Section 501(6)(d)(i) of the Act.[33].
[33] Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 80 at [123] and Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1578 at [84].
To support the argument that there is a risk here, the Respondent makes the following points:[34]
[34] See Exhibit 3-Respondent’s SFIC.
(a)No expert evidence was tendered by the Applicant in relation to the causes of the Visa Applicant's offending or his risk of recidivism.
(b)Mr Shrewsbury’s opinion appears to be based on the Visa Applicant’s self-reported information.
(c)The Visa Applicant's completion of the "Drink Impaired Drivers Program" was compulsory and leaves it open for the Tribunal to infer that the Visa Applicant has little insight into the seriousness of drink-driving.
(d)The Visa Applicant's breaches of community – based orders on two occasions leave it open to infer a level of disregard for court orders.
(e)The Visa Applicant's failure to declare his criminal convictions in the Incoming Passenger Card means that he provided false or misleading information to the Respondent’s Department.
(f)The reasons offered by the Applicant and the Visa Applicant as to why a similar error occurred in the Application should not be accepted.
(g)The character references provided by Mr Rogers and Mr Longson should be discounted as it is unclear whether these individuals knew the Visa Applicant's criminal history.
Weighing the Evidence
What criminal conduct is to be considered?
The United Kingdom Police Certificate does not contain details of the offences and there is no other independent evidence of the factual basis of the Visa Applicant’s offending before the Tribunal.
What can be gleaned from the Police Certificate is that the penalties for the offences were either cautions, fines, driving disqualifications, community punishment, community rehabilitation or community-based orders for the Visa Applicant’s repeated offending up to 2013.
Those penalties suggest that the offending was considered by the sentencing courts to be at the lower end of the range of seriousness. Aside from that, the Tribunal is reliant on the accounts of the offending given by the Visa Applicant and the Applicant which, taken together, the Tribunal finds credible and which it accepts.
Analysing further, the first three offences listed in the Visa Applicant's United Kingdom Police Certificate go to "Burglary And Theft", "Damage Property" and "Attempt/Destroy or Damage Property at a value unknown".
These were committed when the Visa Applicant was a juvenile.
Given the passage of time and the low level of seriousness of these three offences (based on the sentences received by the Applicant from the respective sentencing courts), the Tribunal does not give any significant weight to these offences in assessing the risk.
The Tribunal also observes that these three convictions are considered, under United Kingdom law, to have been spent immediately after being recorded and may also conceivably be affected by Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23.
The next nine offences, committed as an adult, involve drink driving, driving when disqualified, driving an uninsured vehicle and breaches of orders made in the convictions for these offences.
Although not recorded as convictions, the Tribunal acknowledges the Visa Applicant’s and the Applicant’s actions in making false declarations on the Incoming Passenger Card – an offence under Commonwealth law – and in completing the Application.
The Tribunal acknowledges that reference to criminal conduct in the Act must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded i.e., an encompassing definition of criminal conduct.
However, to assess the risk, the Tribunal has regard to Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559, where Chief Justice Brennan and Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [35]
“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.”
(Added emphasis.)
[35] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
The Visa Applicant’s offences are past events offering a basis for determining the likelihood of his future conduct.
Whether there is a risk that the Visa Applicant will engage in criminal conduct in Australia
The Tribunal does not have the benefit of an expert risk assessment to assist it in its consideration of this issue. However, the reasons underlying the Visa Applicant’s offending are not complex.
His adult offending occurred in circumstances when, or resulting from, incidents where he was intoxicated with alcohol.
The Visa Applicant said he had curtailed his drinking now, and the Tribunal does not consider his past drinking to be a significant risk factor in terms of his future conduct.
The Tribunal observes that the Applicant, their son and the Visa Applicant’s apparent conscientious approach to his work and career constitute significant risk mitigation (on the Visa Applicant’s part) and risk management (on the part of the Applicant, their son and the Visa Applicant’s work) factors and strategems.
These risk mitigation and risk management factors also appear effective in that the Visa Applicant has no recorded drink-driving or driving convictions since October 2013 – and in general, no other convictions for other offences.
While no expert evidence was tendered by the Applicant in relation to the causes of the Visa Applicant's offending or his risk of recidivism, the Tribunal observes that the Visa Applicant has now lived more than 25% of his life, and nearly 50% of his adult life without any convictions, since his last conviction. Applying Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22, the Tribunal considers that the Visa Applicant’s historic past offending is outweighed by his historically recent long period of no offences in regard to assessing his recidivism risk
There are two issues arising from the Visa Applicant’s and the Applicant’s actions in making false declarations on the Incoming Passenger Card – an offence under Commonwealth law – and in completing the Application.
First, the Tribunal observes that under United Kingdom law – which is not applicable here but is the law the Visa Applicant is likely familiar with – the Visa Applicant’s juvenile offences are spent as are some of the earlier adult offences.
Second, the Tribunal considers that the combination of the Visa Applicant submitting his United Kingdom criminal record with the Application, the consistent and open admissions of the Visa Applicant in admitting his mistakes in relation to the two documents, his apparent honesty when giving testimony and the absence of any prior or subsequent allegations regarding false declarations or dishonest conduct by the Visa Applicant significantly diminishes the risk of the Visa Applicant engaging in criminal conduct.
Lastly, and most crucially, the Tribunal is satisfied that the Visa Applicant has changed, adopted a pro-social life, and is of good character.
The Tribunal is not satisfied that there is more than a minimal or remote chance that the Visa Applicant, if allowed to enter or to remain in Australia, would engage in criminal conduct.
Consequently, the Tribunal finds that the Visa Applicant does not fail the character test under Section 501(6)(d)(i) of the Act.
As the Tribunal finds that the Visa Applicant has passed the character test, the discretion in Section 501(1) of the Act to refuse to grant the Applicant a visa is not enlivened.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes for it with a finding that the Visa Applicant passes the character test in section 501(6) of the Migration Act 1958 and his Visa application should not be refused under s 501(1) of the Act.
I certify that the preceding eighty-seven paragraphs (87) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave
...............[SGD]..................
Associate
Dated: 2 March 2023
Dates of hearing: 15 & 16 November 2022 Advocate for the Applicant: Ms Rees (the Applicant’s mother) Solicitors for the Respondent: Ms Allen (Sparke Helmore Lawyers) Annexure A - Exhibit Register
Exhibit Number
Description of Exhibit
Party
Date of Document
Filing Date
1
G Documents
(T1 – T45, paged 1 – 187)
R
Various
26 Aug 2022
2
2.0 Applicant’s Statement of Facts, Issues and Contentions (4 pages) &
Attachments:
2.1 Attachment 1 – Statement of Mr S Rogers – dated 04/09/2022 (2 pages)
Attachment 2 – Statement of Mr N F Rees – dated 04/09/2022 (2 pages)
Attachment 3 – Statement of Mr R Longson dated 29/08/2022 (2 pages)
Attachment 4 – Statement of Mr M Shrewsbury (BA BSc Dip Psych) dated 25/07/2022) (1 page)
Attachments 5 – 7 – screen shots of ‘How long do convictions stay on your record QLD?’ (3 pages)
2.2 Attachment 10 – screenshot of ‘online.immi/gov/au/elp/app’ website (1 page)
Attachment 11 – Statement of Ms K Rees dated 19/09/2022 (2 pages)
Attachment 8 & 9, screenshots of ‘Do spent convictions show on DBS UK?’ ( 2 pages)
A
Various
21 Sep 2022
3
Respondent’s Statement of Facts, Issues and Contentions
(14 pages)
R
21 Oct 2022
21 Oct 2022
4
Applicant’s Submissions in Reply
(2 pages)
A
4 Nov 2022
4 Nov 2022
0
15
0