Radovanovic and Minister for Immigration and Multicultural Affairs - [2000] AATA 146

DECISION AND REASONS FOR DECISION [2000] AATA 146

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V99/1426

GENERAL ADMINISTRATIVE DIVISION )

Re Zoran Radovanovic
Applicant

And Minister for Immigration and Multicultural Affairs
Respondent

DECISION

Tribunal Deputy President B.M. Forrest

Date25 February 2000
PlaceMelbourne

Decision The decision under review is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.

.....….(Sgd. B.M. Forrest)...........
Deputy President
IMMIGRATION – spouse visa application – whether applicant passes the character test – whether applicant not of good character – general conduct – overstay of visa and avoidance of detection – less serious criminal history – consideration of outstanding criminal charges – whether discretion to grant visa should be exercised – decision set aside.
Migration Act 1958 ss. 500(6L), 501(1), (6) and (7) and 501G
Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84
Briginshaw v Briginshaw (1938) 60 CLR 336
Sea King Pty Ltd v Australian Trade Commission (1986) 69 ALR 277
Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 156
Luu and Minister for Immigration and Multicultural Affairs (AAT Decision No. 12,190) Luu v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213
Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197

REASONS FOR DECISION

25 February 2000 Deputy President B.M. Forrest

This is an application by Zoran Radovanovic for a review of a decision of a delegate of the Minister made on 13 November 1999 to refuse an application for permanent residence in Australia on spouse grounds. In refusing the application the delegate found that the applicant does not satisfy the character test pursuant to s. 501(6) of the Migration Act 1958 ("the Act").
Section 501 of the Act relevantly provides:
"501 (1) 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.
…
(6)For the purposes of this section, a person does not pass the character test if:
…
(c)having regard to either or both of the following:
the person's past and present criminal conduct;
the person's past and present general conduct;
the person is not of good character;
…
Otherwise, the person passes the character test."
The Tribunal had before it documents filed by the respondent which had been prepared for the purposes of s. 501G of the Act ("the G documents") and exhibits tendered during the hearing.
Section 501 of the Act in its present form is a result of the amendments introduced into the Act by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998, No. 114, with effect from 1 June 1999. In determining whether a person satisfies the concept of good character set out in sub-s. 501(6) of the Act regard is to be had to either or both criminal and general conduct both past and present. If, as a result of an examination of that conduct, a finding is made that the applicant is not of good character then he fails the character test. It is then necessary to decide whether to exercise the discretion in s. 501(1) of the Act in favour of the applicant notwithstanding the adverse finding as to character. The concept of "good character" which was discussed in Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84 refers to the enduring moral qualities of a person and not to reputation or repute: Davies J at 87-88; Lee J at 94.
For the purpose of the exercise of the discretion under s. 501(1) of the Act to refuse, or cancel a visa, the Minister has issued Direction No. 17(2) with effect from 17 June 1999 which has the force of s. 499 of the Act ("the Direction"). The Direction provides guidance to decision makers in making a decision to refuse or cancel a visa under s. 501 of the Act.
The applicant was born in the former Republic of Yugoslavia on 7 June 1969. In 1987 he qualified as an auto mechanic. He then worked in a plastics business for two years before becoming a partner in the business in 1989. He arrived in Australia on 21 April 1991 on a visitor's visa valid until 23 July 1991. In June the visa was extended until 31 December 1991. He remained in Australia after the expiry date without seeking a further extension or applying for any other visa. He did not want to return to Yugoslavia because by then war had broken out in the Balkans. He retained his interest in the plastics business until two years ago when he sold his share. He did not work in this business after he left Yugoslavia in 1991.
On 25 February 1992, the applicant was convicted in Prahran Magistrates' Court of burglary (2 counts), theft and theft of a motor car. He was sentenced to six months imprisonment on each charge to be served concurrently. For a further offence of being unlawfully on premises he was also convicted and sentenced to two months imprisonment concurrent with the other sentences. All sentences were suspended for twelve months and all licences cancelled.
In relation to these offences the evidence as to the circumstances was confined to the applicant's account which in substance was that he played a passive role in events. Paragraph 14 of his statement reads (Ex. A1):
"In relation to the charges of burglary and theft from 1991, I was with a man who I thought was a friend of mine, who told me to wait for him near a house. I was young and probably naive but I did not know what he was doing. He came out and told me to run after we saw the police car coming after us. I had no idea what was going on and ran after him. I never entered the house at all. The car was not stolen. I believed that it belonged to someone that this man knew. It was obvious this man had not broken into the car but the police charged me with car theft anyway. My solicitor at the time, Mr Bernard Balmer, advised me it would be cheaper and quicker to plead guilty to the charges even though I was not guilty. He said I would spend longer in jail on remand if I defended the charges and that if I pleaded guilty I would not go to jail. I took his advice and pleaded guilty. I never knew the full name of the man that I was with this day. I think I knew only his nickname. I am still scared to say this name as he may find out that I have named him and try to find Tiana or myself and hurt us either here or in Yugoslavia. I have not had any contact with that man for many years and do not wish to see him ever again. I can give the Tribunal the name I knew this man as at the hearing."
Tijana Simic an acquaintance of the applicant from Belgrade arrived in Australia in June 1991. She changed her name to Tiana MacDowell ("Tiana") on 28 October 1996. Tiana and the applicant shared accommodation for a few months in Melbourne in 1991 with friends. Then Tiana commenced a relationship with an Australian resident Dejan Maksimovic. She remained on good terms with the applicant. Tiana left Australia on 1 March 1992 and returned to Belgrade. According to customs movement records, the applicant left Australia with Tiana on 1 March 1992, his passport recorded as having cleared the customs processing barrier at Melbourne airport at exactly the same time (15:21:57 hours) on 1 March 1992 by the same customs officer (as indicated by his user ID number) and at the same barrier (D58) as that through which Tiana was cleared. Outgoing passenger cards with the details of the applicant and Tiana both dated 1 March 1992 record the same flight details. The applicant denied having left Australia on 1 March 1992 and later returning on a false passport as alleged by the department. Movement records do not show that the applicant re-entered Australia after 1 March 1992 under the name "Zoran Radovanovic". I will come back to this later.
On 5 May 1994 Tiana married Dejan Maksimovic in Yugoslavia. They returned to Australia on 21 September 1994 but within a few weeks their marriage broke down, according to Tiana, because Dejan returned to a former girlfriend. They were divorced in May 1996.
In late 1994, the applicant bought a third share with former school friends in a river boat operating as a night club in Belgrade. He has not worked in the business. The money for the purchase was advanced through his mother who lives in Belgrade. His share of the profits of the business varied between less than AUD$10,000 to AUD$30,000 per year. Over the last five years the average received per year was AUD$10,000-$17,000. Presently his share in the business is for sale.
In about February 1995 the applicant and Tiana resumed their relationship. Since then they have lived together and, except for six months in Surfers Paradise in 1995-96, in rented accommodation in Melbourne. Tiana was granted Australian citizenship on 21 April 1997.
On 22 April 1998 immigration officers in company with police, acting on information that the applicant was in Australia unlawfully, arrested the applicant and Tiana at their St Kilda flat. A search of the premises, looking for his passport, revealed about 40 young marijuana plants growing and some literature on marijuana cultivation. Mr G. Ruddell, an immigration department officer was present during the execution of the search warrant. He spoke to the applicant and made a brief note in his notebook that the applicant "advised arrived approx 4 years ago on Yugoslav passport in family name Balovic G? Arr. Jan/Feb into TU [Tullamarine]". Mr Ruddell was cross examined at length about the note which he said was probably written in the car as he was returning to his office after leaving the flat. Mr Ruddell said that before that day he had no prior involvement in the matter, he was not aware of the name "Balovic" prior to speaking to the applicant, and denied that he suggested that name to the applicant. Following his arrest the applicant was charged with four offences, "cultivating a narcotic plant – cannabis; possessing cannabis; using cannabis and forging a certificate". He pleaded guilty to the offences and was convicted at Prahran Magistrates' Court on 30 April 1998 and sentenced to an aggregate term of sixty days imprisonment of which the effective total term of imprisonment served was fourteen days. The remainder of the sentence was suspended for two years.
Ms V. Barrio, an immigration officer, interviewed the applicant on 5 May 1998 while he was in custody. The applicant maintained that he had not left Australia since his arrival in 1991 and that he had not given his passport to someone else. He said he last saw his passport about two years earlier. He was not sure whether it was lost or stolen. He insisted that his birth certificate, the subject of the "forging" offence was a genuine one.
On 11 May 1998 the applicant applied for a Bridging Visa E. This was refused on 13 May 1998 on the ground he did not meet the criteria for the relevant visa. A fresh application was successful. On 10 June 1998 he was granted a bridging visa to 24 June 1998 on a number of conditions including that he leave Australia by 24 June 1998. This was later extended to 9 July 1998. Tiana provided security as guarantor.
On 3 July 1998 the applicant applied for permanent residency on spouse grounds, the refusal of which is the subject of this review. On 23 July 1998 the applicant and Tiana were married in Melbourne.
On 5 November 1999 the applicant was arrested and charged with a number of offences relating to cannabis: trafficking (two counts), cultivation, possession and use. He was also charged with criminal damage (two counts) and theft and attempted theft (of electricity).
The arrest followed a period of video surveillance of residential premises at 47 Glencairn Avenue, East Brighton and 342 St Kilda Street, Brighton which police allege were being used by the applicant and his co-accused Zoran Sovilj, Slobodan Rankovic, David Golob, and Uros Popic for the cultivation of large quantities of cannabis plants. Neither of the premises were rented by the applicant. Sovilj rented 47 Glencairn Avenue and Rankovic rented 342 St Kilda Street. According to the police summary, no one lived at either premises. The applicant was detected on video attending at 47 Glencairn Avenue in company with one or more of the co-accused on seven occasions between 8 October and 5 November 1999, the day police executed a search warrant at 342 St Kilda Street. The applicant was present with three of the co-accused at that address when arrested. Uros Popic is said to have admitted to having undertaken work to bypass the power supply to facilitate a hydroponic watering system of the cannabis plants. The four others, including the applicant, were taken to Moorabbin Police Station where taped interviews were conducted. All of them were remanded in custody to appear at Melbourne Magistrates' Court on 8 November 1999. On 12 November the applicant was granted bail on his own undertaking with a surety of $100,000 and reporting conditions. A committal hearing is not expected until mid 2000. I was informed by Ms Aylward who represented the Minister before this Tribunal that the applicant would remain in Australia until resolution of the charges irrespective of the outcome of this review.
At this hearing in answer to questions from his Counsel, Mr Hughan, the applicant denied all knowledge of cannabis cultivation at either property. He has instructed solicitors to defend the charges. In his record of interview with police, he exercised his right to give "no comment" replies to questions alleging his involvement. In evidence to the Tribunal, he said he was visiting friends.
In refusing to grant a visa, the adverse character assessment was made having regard to both criminal and general conduct. In considering the applicant's criminal conduct, he does not have a "substantial criminal record" as that expression is defined in sub-s. 501(7) of the Act which would preclude him passing the character test. There is nothing before the Tribunal of the circumstances of the offending which led to the 1992 convictions or of the plea material in relation to these offences. It appears that the co-offender was never charged, presumably because he was never found. If the applicant's evidence is to be accepted and I have no evidence to the contrary, he played a limited role. Nevertheless a term of imprisonment was imposed, although wholly suspended, upon a person with no prior convictions. I take into account that the convictions were for serious offences but not offences which fall within the "very serious" categories of offences listed in paragraph 2.6 of the Direction.
The 1998 conviction for cultivation of cannabis falls within the "very serious" category in paragraph 2.6(a) of the Direction in that in context "cultivation" has a similar connotation to "production" of illicit drugs. In degrees of seriousness, cultivation of cannabis plants of the amount then found and for personal use, the applicant being an acknowledged cannabis user, is at the lower end of seriousness in relation to drug related offending. While the applicant on the evidence before me appeared to have a plausible explanation for the "forging" charge the inescapable fact remains that he had access to legal advice, he entered a plea of guilty to the offence and was convicted. It is not for the Tribunal to impugn the fact of that conviction.
The instances of "past" general conduct relied on by the delegate were said to have been breaches of Australian immigration laws, in breaching the condition of a visitor visa by overstaying after 31 December 1991 and re-entering on a false passport in 1994 and using a false identity. The "present" general conduct which was said to impact adversely on the applicant was his deceit of immigration officials, in denying he left Australia on 1 March 1992 with Tiana when customs records reveal that a person using his identity departed on that date.
It is not in dispute that the applicant breached the conditions of his visitor visa by overstaying. On the applicant's evidence it was not two months but more than six years unlawful residence. On the issue of his leaving in 1992, the applicant has repeatedly denied, when interviewed by department officers and in his evidence to the Tribunal, having left Australia with Tiana on 1 March 1992. Tiana also denied the allegation saying she travelled alone.
In evidence the applicant said that he travelled to Lighting Ridge with a friend in about mid 1992 and spent eighteen months to two years there learning gem prospecting before returning to Melbourne. He was supported in this by Dr P. Pjesivac, Mr C. Cirkovic, Mr N. Radunovic, and in particular, Mr L. Trafunovic and Ms S. Vinkovic who both live at Lightning Ridge, all of whom made statements and gave oral evidence to the effect that the applicant lived at Lighting Ridge from about April 1992 to 1994. Of itself, this evidence does not entirely rebut the allegation the applicant left Australia in 1992 and returned on a false passport at some unknown later date. I should add here that there is no record of a passport in the name of "Zoran Radovanovic" being presented to re-enter Australia.
The evidence of Dr Pjesivac who was called by the applicant only served to cloud the picture. Dr Pjesivac is a general medical practitioner in Melbourne with a large patient list of Serbian background. Relying solely on his recollection he thought that he treated the applicant three, four or five times during 1992-93. He did not make any clinical notes which could assist his recollection, the reason being, that treatment was free because the applicant did not have a Medicare card. I do not place much reliance on his evidence because it lacked specificity which, in fairness, is understandable given the number of patients he has and the lapse of time since the period in question.
Of particular persuasion surrounding the applicant's residence in Australia was the evidence of Ms Vinkovic, a resident of Lightning Ridge for twenty-five years, who said she has known the applicant since about 1992 when he came to Lightning Ridge with her brother. He was a regular visitor to the local bowling club where she worked for about eighteen months before he left Lightning Ridge.
I am prepared to accept as a probability the applicant did not leave Australia on 1 March 1992 and did not later return to Australia on a false passport. That is not to say that I reject the evidence of customs movement records or that I accept the applicant's evidence unequivocally on these matters. I have considerable reservations about his evidence. Only he (and probably those closest to him) know the truth of events and I am not convinced that he was being candid in his evidence about matters which he perceived may have been to his disadvantage to disclose. Such an approach does little to instil confidence that a person has the inherent qualities of good character.
I accept that the applicant's passport was used for the purposes of departing Australia on 1 March 1992. The inference to be drawn from the objective evidence of customs movement records was not displaced by the applicant's evidence. I regard the applicant's evidence of his passport being either lost or stolen as unconvincing. In evidence to the Tribunal he said he last saw his passport several months after arrival in Australia and he suspected the person with whom he was in trouble and which led to the convictions in 1992, "Ivica or Ivan" to have stolen it. Asked in cross examination whether he had told an immigration officer (when interviewed on 5 May 1998) that the last time he saw his passport was a couple of years earlier he replied "I don't know, maybe I did" (Tr. 73). Despite his denials I think it more likely than not that the applicant knows more about the fate of his passport than he was prepared to reveal.

The timing of the use of the applicant's passport for departure is also I think not without significance having occurred shortly after the applicant was convicted of offences on 25 February 1992 and, at a time when he may reasonably have expected that his continued presence in Australia may have come to the attention of immigration authorities. Instead of leaving Australia as would have appeared from customs records he went to Lightning Ridge and for his own purposes thereafter at times used the identity "Zoran Cuk".
That leaves the issue of the alleged re-entry on a false passport. I accept Mr Ruddell's evidence that the note he made on 22 April 1998 was as a result of information given by the applicant. While I am satisfied the applicant made the admission, equally I accept that it was not true. Why say it? It may well have been a diversion intended to deflect attention from other questions. Searches reveal there is no record of a Mr Balovic or of spelling variables of that name entering Australia around the relevant time. The combined effect of the evidence of the Lightning Ridge witnesses also dispels the truth of the claim of having re-entered Australia in 1994.
The charges laid against the applicant in November 1999 were considered by the delegate as examples of present criminal conduct. This is an incorrect approach as in the context of a s. 501 determination, criminal conduct whether past or present, can only refer to criminal convictions. Charges which await testing by the criminal justice system do not fall within the ambit of present criminal conduct but may be considered under general conduct:: s. 501(6)(c)(ii). The Direction recognises as much. Paragraph 1.10 reads:
"In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
(a)resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):

whether there is a pattern of conduct relating to the applicant (eg similar charges in the past, other criminal behaviour); and/or
the seriousness of the offence with which the applicant has been charged; or
(b)resulted in the non-citizen being acquitted of a criminal offence or where there has been no conviction recorded."

The applicant is facing serious charges and although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the process of administrative review, the Tribunal is required to scrutinise allegations of impropriety against the applicant very carefully given the consequences of adverse findings: Sea King Pty Ltd v Australian Trade Commission (1986) 69 ALR 277 at 285; Kumar v Minister for Immigration and Multicultural Affairs [1999] FCA 156. With this in mind I am satisfied on the basis of the evidence and material before me that the applicant was aware of the cannabis cultivation activity carried on, at least at 47 Glencairn Avenue, East Brighton. It is simply not believable that he had no knowledge of what was happening at that address. If he "was simply visiting my friends" as stated (see paragraph 22 of his statement) on the occasions recorded on surveillance yet when asked in evidence if anyone to his knowledge lived at 47 Glencairn Avenue replied: "I don't know" lends weight to the strength of the adverse inferences which may properly be drawn against the applicant.
Having regard to the nature and seriousness of the applicant's criminal conduct and the applicant's general conduct as already discussed I am not satisfied that he passes the character test. The criminal conduct comprises the convictions in 1992 and 1998 as discussed. The general conduct is the breach of Australia's immigration laws in overstaying for an extended period after the expiry of his visa, misleading immigration officers in the performance of their duties and his behaviour in relation to the charges awaiting resolution although, in relation to this last episode of general conduct I think it unsafe to attach considerable weight to it because of the present status of these charges.
Accordingly I turn to consider the exercise of the discretion in s. 501(1) of the Act. In the exercise of the discretion there are for present purposes two primary considerations to which I must have due regard. These are first, the protection of the Australian community and members of the community and, secondly the expectations of the Australian community. The Direction requires that I adopt a balancing process which takes into account all relevant considerations.
In considering community protection, emphasis is put on the need to protect the more vulnerable members of the community from offending involving drugs and crimes of violence. The applicant's criminal history does not include violence. The 1992 offences were on the evidence available an isolated instance of offences of that character. The convictions for cannabis offences are at the lower end of the scale for drug offending. The applicant's criminal record certainly brings him under notice but it is not a substantial one.
The disposition of the unresolved charges will impact upon any assessment of the risk of recidivism. Because of this I presently have difficulty in reaching a concluded view on this matter. Clearly a guilty verdict in relation to trafficking and cultivation of cannabis would entitle a decision maker to infer that the applicant is an unacceptable risk. This would be so because it would provide an objective demonstration that, despite the evidence led on his behalf which would suggest the applicant has the capacity to make a contribution, and would not be a continuing risk, the community would be entitled to expect that it should not have to take the risk of further offences being committed.
While the Direction requires that I consider the question of general deterrence, I am of the view this is not a major factor in the circumstances of this matter. If I am wrong on this, I think it reasonable to assume that the deprivation of liberty to date would in itself act as some form of deterrence to persons contemplating similar behaviour within the community where the applicant is known.
A relevant consideration is the treatment of the unresolved charges. This presents a number of difficulties. The applicant said that he is innocent and intends to plead not guilty. As a consequence, he is entitled to be presumed innocent of the acts that are the subject of the charges until a court or a jury is satisfied beyond reasonable doubt that he is guilty.
With this in mind, when the matter was raised during a preliminary directions hearing, I raised the question of the appropriateness of the proceedings given firstly the indication by the department that reliance would be placed on these charges and, secondly, because the time limits imposed on the review process by s. 500(6L), require that a decision be made within the period of 84 days after notification of the decision under review is given otherwise the Tribunal is taken to have affirmed the decision. It seemed to me that a preferable course as a matter of fairness would have been to remake the decision when the result of the current charges is known. The proposal did not find favour with the department.
Whether the applicant is involved in the acts of which he is charged to the extent as would enable a jury properly instructed to return a guilty verdict is a matter for the criminal justice system and not the Tribunal. If for instance the applicant was ultimately found not guilty of the charges and a previous adverse assessment had taken into account the then unresolved charges the result would be harsh in that the conduct of which he was acquitted was taken into account in a determination of the issues. This would in a sense be a reverse application of the well settled legal principle that the Tribunal cannot impugn the fact of conviction of an offence: see Luu and Minister for Immigration and Multicultural Affairs (AAT Decision No. 12,190) and on appeal Luu v Minister for Immigration and Multicultural Affairs (1998) 157 ALR 213; also Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197. Accordingly I take into account as a relevant consideration in the exercise of discretion the fact that these charges have not been scrutinised by the criminal justice system.
The other relevant primary consideration is the expectations of the Australian community. On this question I think it is reasonable to say that the community expectations may be unanswered on the basis that the displeasure of the community would be governed by the result of the pending charges given their nature and seriousness rather than by the offences for which the applicant has been convicted and his immigration behaviour.
The Direction in paragraph 2.17 lists non exhaustively a number of "other" considerations which may be relevant. Where appropriate they are to be taken into account but given less weight than the primary considerations.
It is not in dispute that the applicant is in a genuine marriage to Tiana, an Australian citizen. I accept that she would suffer considerable hardship in the event of the applicant having to leave Australia. She suffered depression, requiring psychiatric care and anti-depressant medication for two years following the break up of her first marriage (Ex. A4). Currently she is receiving treatment for a medical problem which it is expected will require monitoring for about eighteen months (Ex. A5). She is now settled in Australia, is gainfully employed and as stated earlier has acquired Australian citizenship. I accept as genuine her desire to remain in Australia which she regards as providing a much better future for her. To return to Yugoslavia in the event of the applicant being refused a visa would disrupt her life and cause considerable distress (Ex. A5) despite the fact that the weight to be given to the hardship she would undoubtedly suffer is diminished by her knowledge of the applicant's unlawful status in Australia since 1992 and of the hurdles he may face in gaining permanent residency.
The applicant and Tiana do not have any of their immediate families in Australia. The applicant's mother and step brother live in Yugoslavia as does Tiana's mother. On one view of matters the applicant could comfortably return to the former Yugoslavia where he has family and business interests. The interest in the night club business is a passive one in the sense he has not played any active role in the business and in any event is for sale to pay legal expenses. As is well documented the former Yugoslavia is a troubled area of Europe and I accept that his return would involve some hardship including the prospect of military service in a regime which has attracted universal condemnation for its actions.
The applicant has some commendable qualities. Mr Cirkovic, a travel agent gave evidence of the support and kindness given by the applicant to his son prior to his son's death last year. Mr A. Koppel, a businessman and president of Gemulath Chessed Organisation, a Jewish welfare organisation, said the applicant has assisted him in charity work by acting as an interpreter. Mr Koppel who has a family plastics business employing sixty people has offered the applicant full time employment if allowed to remain in Australia. There were other witnesses who provided their own subjective assessments of good character. I have no reason to doubt the integrity of these witnesses but in an objective assessment of character in the context of the Act their evidence was of limited value.
In my view, if granted permission to work the applicant has not only the opportunity to relieve the aimlessness of his present lifestyle but to demonstrate his capacity to make a contribution to Australia. He has a good command of English, youth, people around him prepared to give him the chance to demonstrate his commitment to Australia and a spouse who would assist his rehabilitation.
Having considered all of the evidence and submissions and the matters required by the Direction to be taken into account, the competing considerations for the exercise of discretion are finely balanced. I have come to the conclusion that the balance falls ever so slightly on the side of an exercise of discretion in favour of the grant of a visa. In adopting that course I am aware that in the event of the applicant being convicted of the charges awaiting determination the Minister has power to cancel the visa because of the weight which may then be attributed to those charges.
For these reasons the decision under review is set aside and the matter is remitted to the respondent with a direction that the visa not be refused on character grounds.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President B.M. Forrest
Signed:         .....................................................................................
  Associate
Date/s of Hearing  8, 9, 10 and 11 February 2000
Date of Decision  25 February 2000
Counsel for the Applicant        Mr G. Hughan
Solicitor for the Applicant         Erskine Rodan & Associates
For the Respondent                 Ms J. Aylward, departmental advocate