QKVH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

QKVH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4431 (2 November 2020)
Division:GENERAL DIVISION
File Number(s): 2016/5428
Re:QKVH
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:2 November 2020
Place:Adelaide

The decision of a delegate of the respondent dated 5 October 2016 to refuse the applicant’s application for a Partner (Temporary) (Class UK) visa is set aside and substituted with a decision that the applicant not be refused a grant of a visa under s 501(1) of the Migration Act 1958.
...............[Sgnd]....................................
Deputy President Britten-Jones
CATCHWORDS
Migration – refusal to grant Partner visa – whether the applicant is of good character - whether the applicant failed to pass s 501(6)(d) character test – whether to exercise discretion to refuse - risk to the Australian community – nature of criminal conduct not serious and of limited duration – applicant reformed – applicant proved himself by his conduct to be of good character – considerations in Direction No. 79 do not favour exercising of discretion to refuse the applicant a visa – decision set aside and remitted
LEGISLATION
Migration Act 1958
CASES
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
FYBR v Minister for Home Affairs [2019] FCAFC 185
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President Britten-Jones
2 November 2020

This is an application for a review of a decision of a delegate of the respondent (the Minister) dated 5 October 2016 to refuse the applicant’s application for a Partner visa under s 501(1) of the Migration Act 1958 (the Act).[1]
[1] All references to legislation are to the Migration Act 1958 unless otherwise stated.
The delegate of the Minister found that the applicant was not of good character on the basis that there is a risk that he would engage in criminal conduct in Australia (s 501(6)(d)). The Minister contends that the delegate’s decision was the correct or preferable decision and should be affirmed. The applicant contends that he is of good character and that there is no risk (or a low risk) that he will re-offend.
The Legislative Scheme
Section 501 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 in s 501(6) and says relevantly at s 501(6)(d)(i) that a person does not pass the character test if in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia. The Full Court of the Federal Court in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [2] said that this section requires an evaluative judgment by the decision-maker as to whether the decision-maker is satisfied there is such ‘a risk’. If I am so satisfied, then the discretion is enlivened, and I may refuse to grant a visa having regard to Direction no. 79 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79).
It follows that the legislative scheme provides for a two-step process. The first step is the evaluative judgment as to whether the applicant is of good character and in particular in this case whether there is a risk of further criminal conduct. The second step arises if I am not satisfied that the applicant is of good character in which case, I may exercise a discretion to refuse to grant the applicant a visa.
The first step involves a forward-looking process to evaluate the risk of a person engaging in the future in criminal conduct in Australia. In Minister for Immigration & Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ observed as follows (at 574–575):
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.
More recently, it has been found that the evaluation of the risk of offending in the future must have an evident, intelligible and rational foundation.[2]
[2] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [131].
As to the level of risk required to satisfy the statutory test, Kerr J said in Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 at [84] that ‘a derisorily small possibility’ is not sufficient.[3] In that decision, Kerr J referred to the terms of the Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) at paragraph 46 of Schedule 1, which states that the “intention” of s 501(6)(d)(i) was that ‘the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’[4]
[3] The decision of Kerr J was overturned on other grounds.
[4] Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 [ 83].
The approach of Kerr J is consistent with paragraph 6(2) of Annex A to Direction 79 which provides that ‘the grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance’ of future offending.
The second step involves the exercise of a discretion guided by the considerations set out in Direction 79. Section 499(2A) mandates that the Tribunal must comply with Direction 79.
Paragraph 6.1 of Direction 79 sets out the following objectives:
6.1 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.
…
(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 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.
By way of general guidance, paragraph 6.2 of Direction 79 provides:
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… .
The principles referred to in the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Parts A, B, or C of Direction 79:
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.
Paragraph 7.1(a) of Direction 79 states that a decision-maker:
… must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa;
Paragraph 8(1) of Direction 79 explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
The considerations relevant to visa applicants are found in paragraphs 11 and 12 of Part B of Direction 79.
If it is determined that the applicant does not pass the character test, the following primary considerations in paragraph 11(1) of Direction 79 must be applied to the specific circumstances of his case:
(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.
Paragraph 12(1) of Direction 79 requires that other considerations to be taken into account, where relevant, include (but are not limited to):
(a)International non-refoulement obligations;
(b)Impact on family members;
(c)Impact on victims;
(d)Impact on Australian business interests.
I mention at this point that, despite Part B of Direction 79 applying to visa applicants, there is a reference in paragraph 12 to ‘deciding whether to cancel a visa’ (emphasis added). This is clearly a typographical error and the word “cancel” should be replaced by “refuse”.
Paragraph 8(4) of Direction 79 states that ‘Primary considerations should generally be given greater weight than the other considerations.’ Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’
Factual Background
Statements and oral evidence were given by the applicant, his current partner, his friend from university, a family friend from Pakistan (who now lives in Melbourne) and a clinical psychologist. I make the following findings of fact based on this evidence and the other written material tendered as evidence at the hearing.
The applicant was born in Pakistan and brought up in a well-off middle-class family without incident.[5] He received a good education and completed his O-Levels and his A-Levels whilst participating in sports and other activities. He decided to come to Australia to pursue his tertiary studies. He was granted a student visa and arrived in Australia on 20 May 2007. He completed a Diploma of commerce at Deakin University and commenced a Bachelor of commerce but never completed it. He lived in accommodation for overseas students for about two years and became friends with the accommodation manager, who has provided a positive character reference.[6] He made friends whilst studying and participated in soccer and other fitness activities. He had some part-time employment with Telstra and then Dunn and Bradstreet. In 2009, he volunteered to help people affected by the Black Saturday bushfires.
[5] A Police Character certificate (G119 at p 599) was tendered in support of his good behaviour whilst in Pakistan.
[6] G193.
In August 2008 when still studying, he met a woman with whom he commenced a romantic relationship. She suffered from mental health issues and other medical conditions. This placed a strain on their relationship, but he was fully committed to her. His studies began to suffer, and he stopped attending classes because of his carer commitments to her. The financial support from his family ceased, and he found himself destitute moving from house to house and eventually homeless and living in his car and various hostels. A period of lawlessness followed.
In January 2010 he committed traffic offences of driving an unregistered vehicle and driving whilst his authorisation was suspended. The applicant offered some explanation saying that he had a Pakistani driver’s licence which he believed allowed him to drive legally in Australia, but in cross examination he accepted that despite being informed that he was not authorised to drive, he did so. He expressed regret for this and accepted that it was a very poor choice. He pleaded guilty to these charges in the Frankston Magistrates Court on 17 January 2011 and he received a suspended sentence of imprisonment for two months.
His next offence was stealing from David Jones on 29 January 2010. He had no money at the time and stole perfume to give to his partner as a gift. He was apprehended upon leaving the store and searched. He had in his possession a number of items, which were the proceeds of crime and a kitchen knife which he used to cut food as he was homeless at the time. He pleaded guilty in the Melbourne Magistrates Court on 25 July 2011 but no conviction was recorded. He received a community-based order of 75 hours.
The next offence occurred when the applicant and his partner were at the cinema watching a movie on 22 August 2010. There was an altercation during which the applicant became concerned for the safety of his partner and intervened. As a result, another woman received an injury to her head and the applicant was charged with recklessly cause injury. On the advice of his lawyer, the applicant pleaded guilty in the Melbourne Magistrates Court on 17 August 2011.
On numerous dates in May and June 2011 the applicant committed credit card fraud by using credit card details found in a motel room to purchase various items online. The majority of these purchases were food and items of necessity for him and his partner. Other items were expensive clothes and sunglasses, which would not be described as necessity items. He was charged with 13 counts of obtaining property by deception to which he pleaded guilty. He was sentenced at the same time as being sentenced for the offence of recklessly cause injury, and he received a concurrent sentence of three months’ imprisonment on 17 August 2011. He was released from prison on 25 October 2011 and then spent a period in immigration detention up until 20 January 2012 as he did not hold a valid visa (it was cancelled on 15 April 2011).
On 20 January 2012, the applicant applied for a Partner visa and was granted a bridging visa, but not allowed to work. He made numerous applications for work rights in 2012, but it was not until 16 May 2013 that he was granted permission to work. His period of homelessness and severe financial hardship continued.
In March, November and December 2012 the applicant breached his community-based order by failing to report. On 13 May 2012, the applicant stole sheets, drinks and nuts from Coles at a time when he was still homeless and hungry. On 14 September 2012, the applicant had no money to pay for anti-depressants that he had been prescribed whilst in detention, so he left the chemist without paying.
The applicant’s final criminal offence was when he stole two energy drinks from Woolworths on 22 January 2013. He left the store and was approached by a ‘Loss Prevention Officer’. The applicant said he panicked and pulled a pocketknife from his bag, threatened the officer with it and ran away. As a result, he was charged and pleaded guilty to theft, threat to inflict serious harm and assault with weapon in the Werribee Magistrates Court on 17 October 2013.

The applicant has expressed remorse for all his criminal activity, and I will return to that topic later. He did not deny any of the offending but sought to put it in context when cross-examined at length about these incidents. I found the applicant to be a truthful witness. He was candid and not evasive when giving his evidence. His explanation of these events was largely consistent with previous written statements although at times he provided more detail when pressed in cross examination. No evidence was called to contradict the applicant’s version of events and there were no sentencing remarks available. There is no issue that the applicant committed the offences to which he pleaded and was found guilty, but I accept his version of the circumstances surrounding that offending. I consider it very relevant that his offending took place during a period when he was homeless or desperate and without financial support. The applicant’s dire situation is confirmed by numerous contemporaneous written communications in May, June and July 2012 and later in 2013.[7]
[7] G186, pp 1083 -1093.
From 23 January 2013 to 5 October 2016 the applicant was in the community contributing positively without committing any crime. During this period the applicant had stable accommodation in Footscray, and he was in regular contact with his family friend with whom he met at least once a month in the city. After obtaining permission to work in June 2013, the applicant obtained employment at Chemist Warehouse and Origin Energy. From February 2014 until detention, he was an Account Representative at Collection House. The corporate counsel from Collection House confirmed in writing the applicant’s employment and that his employment would continue if it is determined that he has the legal right to reside in Australia.[8]
[8] G198, p 1157.
The evidence with respect to his time in detention is that he has continued his good behaviour and positive contribution. Whilst in detention he received a certificate of thanks for running lessons on debt management, he participated in numerous workshops and in an anger management group for which he received a certificate dated 3 March 2017.[9] In addition, he suggested and organised cricket training and games for detainees for which he was given responsibility by the management of the detention centre.
[9] Exhibit 3.
The applicant has developed a relationship with his current partner since meeting her in August 2018. They first met online and then in person in 2019. She provided a written statement and gave oral evidence that upon his release she would support him and allow him to stay with her. He has said it is his intention to move in with her if he is released. The applicant’s family friend has also offered his support both financially and to provide him with accommodation.
Background to Visa Refusal and this Hearing
On 20 January 2012 the applicant applied for a Partner visa. The application was refused on 20 November 2012, but that decision was then set aside by the Migration Review Tribunal on 7 November 2013 and the application was remitted to the Department of Immigration and Border Protection. On 8 April 2015, the Department gave notice of an intention to consider refusal of the visa application under s 501(1). In response to this notice the applicant provided submissions and material in support of his character. On 5 October 2016 the applicant was given notice that his visa application had been refused on character grounds under s 501(6)(d)(i).
On 7 October 2016 the applicant applied to the Tribunal for review of the refusal decision. The Tribunal affirmed the decision, but the Federal Court quashed the Tribunal’s decision and remitted the matter to the Tribunal for determination according to law. A differently constituted Tribunal heard the matter, but once again, the decision of the Tribunal was set aside this time by the Full Court of the Federal Court.
Does the Applicant Pass the Character Test?
The first issue to consider is whether, in the event that the applicant was allowed to remain in Australia, there is a risk that he would engage in criminal conduct. As set out above the level of risk required is more than a minimal or trivial likelihood of risk. Some guidance for the decision-maker is provided by Davies J in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 at 425:
If there is a criminal conviction, the decision-maker will have regard to the nature of the crime to determine whether or not it reflected adversely upon the character of the applicant. If the conviction was in the past, the decision-maker will turn his attention to whether or not the applicant has shown that he has reformed. If persons speak well of the applicant, the decision-maker will take that into account.
I turn now to consider the nature of the applicant’s criminal activity and whether it reflected adversely on his character. With respect to the offences involving a ‘weapon’, the applicant received a community based order without conviction for the January 2010 offending and a community correction order with a conviction for the January 2013 offending. I accept his explanation that he kept a knife in his backpack so that he could use it to cut food. I take into account that the applicant made no attempt to injure anyone with his knife. I would not categorise his offending with a knife as constituting serious violence and this is supported by the fact that the Magistrates Court imposed no term of imprisonment for these offences. The offence of carrying a kitchen knife in a backpack does not reflect badly on his character. However, threatening the security officer with a pocketknife is more serious and does reflect badly on him, but should be seen in the context of his explanation that he panicked and took out the knife so that he could get away. There was no intent to use the knife against the unidentified officer.
The offences of theft involved relatively inexpensive items which he shoplifted. The stolen items included perfume for his partner, anti-depressants for himself, sheets, food and drinks. The applicant was homeless at the time and without financial support. In those circumstances, the thefts are not very serious and do not reflect adversely on the character of the applicant.
The most serious offending, for which he received a term of imprisonment, was the credit card fraud and the recklessly cause injury to the woman at the cinema but even those offences have mitigating circumstances, namely that he purchased items on line to avoid hunger or to give to his partner and that he intervened in the scuffle at the cinema so as to protect his partner. I accept that he had no intention to hurt anyone in the cinema, and I note that he has expressed genuine remorse that another woman was hurt in the altercation. In the absence of any sentencing remarks for this offending I am willing to accept the applicant’s version of events at the cinema that he had no intention to cause harm, that he was reacting to the intimidating behaviour of others and that his primary motivation was to protect his partner. In these circumstances, the seriousness of this offending is diminished significantly.
The applicant’s offending occurred over three years during which the applicant was in dire circumstances involving financial pressure and periods of homelessness. The applicant has been in Australia for 13 years and had not offended prior to this period and has not offended since. This suggests that his offending was out of character particularly because of the applicant’s positive contribution to the community before and after his period of offending and when his circumstances had changed.
I turn now to consider the issue of reform. The applicant has expressed genuine remorse and exhibited insight into his offending. He has taken steps to rehabilitate himself by attending an anger management course. He lived a stable and uneventful life from 2013 to 2016 during which he was gainfully employed and renting accommodation in Footscray. He was also regularly attending the Melbourne Sports and Aquatic centre to swim and exercise at the gym.
In his most recent statement, the applicant said:
I regret my behaviour between 2010 and 2013 and understand that it was completely unacceptable. I should have asked for help when I needed it. I understand the consequences of my actions, and the impact that I had on my victims. I’m sorry for the pain I’ve caused. I have used this significantly long period of detention to reflect on what went wrong and my responsibility for it. I know that I will never put myself in that position or break the law again.
As to the intentions of the applicant upon release from immigration detention, the applicant said in his most recent statement:
If I am released from immigration detention, I intend to find employment as soon as possible. I have $3777 in my bank account at the moment which will be sufficient to support me in the short term while I look for employment.
[Current partner] and [current partner’s daughter] [10] are in the process of moving into a new house, where I intend to live if I am released from immigration detention. If I ever need accommodation in Melbourne, I know that [my family friend] … has offered me his spare room in his family home in Melbourne and I’m grateful for this and will accept this offer if at any stage needed. However, my intention for now is to live with [current partner] and settle in New South Wales.
[10] [Names] have been removed for confidentiality.
It is important to note the support that the applicant now has which he did not have at the time of his offending. This support comes from his current partner who has offered financial, social, medical and accommodation support and from the friend of his family who has offered him support ‘in any way that he requires to get back on his feet whether it be providing him with accommodation or financial assistance’. His previous partner was not in a fit mental state to support him, and in fact her mental health issues created instability in his life. With respect to the friend of the family, his evidence was that he lost contact with the applicant after he had told him that he would not lend the applicant any more money and that he only reconnected properly with him from 2013. It is apparent that he now has a better support network than he had during his period of offending. He also has support from his good friend from university.
Mr Newton, the clinical psychologist who prepared a report dated 9 October 2020, noted historical factors with respect to the applicant’s offending and said (which I accept):
… the instability in his intimate relationship led to severe disruption of his ability to maintain employment which in turn led to the breakdown of his engagement with mainstream society and involvement with general criminal conduct which he rationalised as being necessary to support himself. From such dysfunctional cognitions it was a short step to conceive of the instrumental use of violence as being justified. …
It is clear that with the passage of time many of these factors have now been ameliorated or addressed. In particular, with the end of his relationship with Ms [C] the key destabilising factor (her mental illness and the homelessness that resulted) is now resolved. … In light of this it is reasonable to conclude that the key drivers of the general criminality were situational rather than dispositional in his case. Finally, the applicant overtly and repeatedly disavowed his past violent conduct and the attitudes that underpinned it.
As to risk management factors Mr Newton said, and I accept that:
No significant risk management factors are identified as being relevant in [the applicant’s] case. That is, there are no indications that he would have difficulties in his living situation, support networks, access to treatment or capacity to manage the predictable stressors of returning to the Australian community if he were to be released from immigration detention.
… With the passage of time his risk of recidivism has manifestly decreased. As matters stand at present, and taking into account the combination of historical, clinical and risk management factors which have empirically demonstrated correlation with the risk for violent recidivism, I assess [the applicant’s] overall risk of recidivism to violent offending as falling in the low risk range.
With respect to the assessment of risk for general offending Mr Newton placed the applicant in the low risk range for general recidivism. In his oral evidence Mr Newton explained that an assessment of low risk is the lowest risk available such that there is no risk lower than it.
Mr Newton gave oral evidence that the applicant has matured significantly since his period of offending and has come a long way. He said that the applicant has expressed remorse in unconditional terms and that his remorse is accompanied by empathy for his victims and shame. He described the applicant as a low risk offender with an increased capacity to manage his emotions such that there are grounds for optimism for him.
In addition, there is the psychologist’s report from Mr Warren Simmons in 2018 who interviewed the applicant and found that ‘he did not justify his behaviour and recognised that it was wrong and inappropriate.’ Further he noted that ‘much of his offending occurred during a time when he was homeless and living in his car. He was impecunious and many of his offences were simply to get by as he was not able to work and had no income and that ‘there was no evidence of any anti-social personality traits’ and there ‘appears to be a low risk of further offending.
I turn now to consider the positive character references given by the lay witnesses called by the applicant and contained within numerous written communications tendered as evidence. The friend of the applicant provided a statutory declaration declaring that he is fully aware of the criminal convictions of the applicant and that he continues to stand by his view that the applicant is a person of good character who has shown an enormous amount of generosity and compassion to others. The family friend of the applicant has known him from when he was child and says that his offending was out of character and that he can see that the applicant is remorseful for his behaviour and that he will not reoffend if allowed to remain in Australia because he has learnt from his mistakes.
In conclusion, the applicant has matured significantly since the period of offending and has demonstrated in the years since January 2013 that he has reformed and learnt from his mistakes. The circumstances of unemployment, homelessness and impecuniosity are unlikely to occur again given his changed circumstances in particular the level of support he has. Further, his improved maturity puts him in a much better position to deal with any adversity he may face in the future. I consider that the low risk of any reoffending found by the clinical psychologist reflects a level of risk that is minimal. I take into account the evidence from persons who speak well of the applicant and that but for a period of three years he has been law abiding and a positive contributor to his community. Prior to 2010, the applicant demonstrated that he was a good student at both the secondary and tertiary level. The applicant has proven himself to be of good character and to have ‘enduring moral qualities’[11] by his conduct since 2013. Consequently, I am satisfied that the applicant passes the character test.
[11] Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422 [431].
It follows that the discretion to refuse to grant a visa is not enlivened but, in any event, I will proceed to consider the factors relevant to the exercise of that discretion, albeit that course is unnecessary.
The Discretion to Refuse to Grant a Visa
I turn now to consider the primary and other considerations set out above in Part B of Direction 79.
Protection of the Australian community – 11.1
The applicant’s offending was not of a violent nature and would not be categorised as very serious. I note the principle that crimes of a violent nature against women are viewed seriously but I do not consider that the applicant was acting violently during the cinema incident and, as I found above, I consider he had no intention to inflict injury on another person but rather was acting to protect his own partner. The crime of having a kitchen knife in his backpack involved no violence and his explanation was satisfactory. The crime involving the pocketknife after shoplifting from Woolworths was not very serious based on his evidence and the relatively low sentence of a community correction order. The theft and credit card fraud did not involve large sums of money and arose in the circumstances already described where the applicant found himself in a dire financial situation. He stole items so as to satisfy the needs of himself and his partner.
The offending was frequent but took place over a limited period of three years. I take into account that he committed offences in breach of a suspended sentence and in contravention of a community based order which shows a disregard for judicial authority, but I do not consider the cumulative effect of the repeated offending renders the nature of the offending as serious. The nature of the offending needs to be seen in the context of the unstable circumstances of homelessness and impecuniosity which led to the offending. I do not discern a trend of increasing seriousness, rather there are traffic offences in January 2010 and a series of petty thefts in January 2010, May to June 2011, May 2012, September 2012 and January 2013. He was convicted of the offences for which he received a prison sentence in August 2011. His later offending did not attract a prison sentence which suggests the offending became less serious.
The nature of the harm if the applicant re-offends does not give rise to a significant risk of physical injury. The majority of the offending involved theft from retail outlets which were not of significant value. I do not consider the potential harm from re-offending to be serious.
As to the likelihood of re-offending, I take into account the independent and authoritative expert reports from the two psychologists who both found a low risk of recidivism. Further, there is evidence of rehabilitation achieved by the time of this decision because he has attended an anger management course and the experts considered he showed genuine remorse and had a proper insight into his offending. Most importantly, I give very significant weight to the time spent in the community since his most recent offence in January 2013, which is now over seven years ago. The applicant spent over three and a half years in the community during which, not only did he not offend, but he contributed positively to the community by working at all times and engaging in other merit worthy activities. His unblemished record from January 2013 in the community continued whilst he was in detention from October 2016 to date. The applicant has proved himself to be fully rehabilitated.
I find that the Government’s commitment to protecting the Australian community from harm can still be achieved if the applicant is released into the community because the risk of further offending is low, and the nature of any future offending would not be serious. I do not consider that this is a factor in favour of refusing the applicant his visa application.
Best Interests of Minor Children – 11.2
The applicant put forward his current partner’s daughter as a child who would be impacted by any decision to refuse a visa. The applicant’s relationship with his partner and her daughter has only been whilst in detention and for a relatively short period of time. The daughter has only visited him twice in person and other contact has been by phone. The relationship is non-parental, and they have had limited meaningful contact. I am not satisfied that there is any significant or meaningful relationship between the applicant and his partner’s daughter, and I am unable to conclude that it would be in her best interests for the visa application to be granted. I consider this factor to be neutral in terms of exercising my discretion to refuse to grant a visa.
The Expectations of the Australian Community – 11.3

In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1)[12] rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs [2019] FCAFC 185.
[12] In this case paragraph 11.3(1) of Direction 79
In exercising my discretion, I am also informed by the principle at paragraph 6.3(7) of Direction 79 that:
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.
I take into account that the Australian community expects non-citizens to obey Australian laws while in Australia. However, whilst this expectation has not been met with respect to the applicant for a limited period of three years in the past, he has shown himself to be well behaved during the majority of his time in Australia. The significant length of time that the applicant has been contributing positively to the Australian community when compared to the much shorter period of offending means that the Australian community would not expect his visa application to be refused. I have no concerns about the character of the applicant; to the contrary, I have found that he is of good character. The nature of the offending and their circumstances when seen in the context of his lengthy periods of good behaviour mean that the Australian community would not expect his visa application to be refused. I do not consider that this is a factor in favour of refusing the applicant his visa application.
Other Considerations
The parties to this matter agreed that I should give neutral weight to the other considerations of international non-refoulement obligations, impact on victims and impact on Australian business interests.
The applicant contends that I should give some weight to the impact on family members because of his relationship with his current partner and her daughter. My view is that they are not family members and therefore this factor is neutral because there are no family members in Australia. If I am wrong about that then I would only give minimal weight to this factor in favour of not exercising my discretion to refuse to grant a visa.
Conclusion as to the exercise of my discretion
I have considered the specific circumstances relating to the applicant as part of my consideration whether to exercise my discretion to refuse to grant the applicant a visa. Having considered the factors in Direction 79 I have reached the conclusion that those factors do not favour the refusal of the applicant’s visa application. In particular, the primary considerations relating to the protection of the Australian community and the expectations of the Australian community are factors which do not favour refusing to grant a visa. The applicant is fully rehabilitated, and he has contributed positively to the Australian community since his last offence in January 2013. The nature of his offending was not serious but, in any event, he has shown insight into his offending and has expressed genuine remorse. He does not pose any significant risk to the Australian community if released.
In all of the circumstances I would not exercise a discretion to refuse to grant the applicant his visa.
Decision
I am satisfied that the applicant is of good character, and, in any event, I would not exercise my discretion to refuse to grant a visa to the applicant. I set aside the refusal decision and substitute a decision that the applicant not be refused a visa under s 501(1).

68.     I certify that the preceding sixty-seven [67] paragraphs are a true copy of the reasons for the decisions herein of Deputy President Britten-Jones.

.............[Sgnd].............................
Administrative Assistant Legal
Dated 2 November 2020
Dates of hearing:  19 and 20 October 2020
Applicant’s Representative:  Mr J Burnside QC instructed by Carina Ford Immigration Lawyers
Mr H Watkins of Counsel instructed by Carina Ford Immigration Lawyers

Respondent’s Representative: Mr M Cleary of Counsel instructed by Sparke Helmore Lawyers

[2020] AATA 4431

2 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

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