Roberts and Minister for Home Affairs (Migration) - [2018] AATA 3970

Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 (10 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4345
Re:Shaun Roberts
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:10 October 2018
Date of written reasons: 23 October 2018
Place:Sydney

The decision of the Minister’s delegate, made on 6 July 2018, to refuse the issue of the visa applied for is set aside and remitted to the Minister for reconsideration with a direction that the visa applied for be not refused on character grounds under section 501 of the Migration Act.
..............................[sgd]..........................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – visa refusal – character test – criminal record – failure to disclose convictions in application – driving with excess alcohol in system – driving offences – damaging property – offences involving violence – primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – Impact on family members – Impact on Australian business interests – set aside and remitted with direction
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK)
Migration Act 1958 (Cth) ss 501
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct) Bill 1998 (Cth)
Rehabilitation of Offenders Act 1974 (UK)
CASES
Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
Alam v Minister for Immigration and Border Protection [2017] AATA 1233 at [75]
Ali Reza Denizgezen v Minister for Immigration and Border Protection (Migration) [2016] AATA 727
Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27
Asir Intesir v Minister for Immigration and Border Protection (Migration) [2017] AATA 503
Ayache v Minister for Immigration and Border Protection [2018] AATA 310
Bowdler and Minister for Immigration and Border Protections (Citizenship) [2018] AATA 347
BFXK v Minister for Immigration and Border Protection [2018] AATA 886
Bushell v Repatriation Commission [1992] HCA 47
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307
Dinkha v Minister for Home Affairs [2018] AATA 3037
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409
Fu (Migration) [2018] AATA 732
Furlong and Minister for Immigration and Border Protection (Migration) [2017] AATA 3014
G v Minister for Immigration and Border Protection [2018] FCA 1229
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774
Gungor v Minister for Immigration and Ethnic Affairs (1980) 3 ALD 225
Irani and Minister for Immigration and Border Protection (Migration) [2017] AATA 3051
Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84
Jianri Fang v Minister for Immigration and Border Protection [2018] AATA 3686
JRJZ v Minister for Home Affairs [2018] AATA 3687
KDSP v Minister for Immigration and Border Protection [2017] AATA 2169
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 401
Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 33 ALD 13
Nevistic v Minister for Immigration and Ethnic Affairs [1981] 34 ALR 639
Park v Minister for Immigration and Border Protection [2018] AATA 2299
Re Drake and Minister for Immigration and Ethnic Affairs (No.2)[1979] 2 ALD 634
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] 62 ALD 472
Minister for Immigration and Ethnic Affairs v Baker [1997] 45 ALD 136
Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 ALR 567
Miremad Bahrami v Minister for Home Affairs [2018] AATA 1332
Molloy and Minister for Immigration and Border Protection (Migration) [2017] AATA 2712
Morris and Minister for Immigration and Border Protection (Migration) [2018] AATA 3374
Murphy v Minister for Immigration and Border Protection [2018] AATA 750
Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082
QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Roberts (Migration) [2017] AATA 1571
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Sabharwal v Minister for Immigration and Border Protection [2018] FCAFC 160
Shi v Migration Agents Registration Authority [2008] HCA 31
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
SECONDARY MATERIALS
Ministerial Direction No. 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
Pearce, Dennis, Administrative Appeals Tribunal (LexisNexis Butterworths, 4^th edition, 2015)
Explanatory Memorandum Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct Bill 1998 (No.2)
Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014
REASONS FOR DECISION
Chris Puplick AM, Senior Member
23 October 2018

These reasons are published in accordance with undertakings given on 10 October 2018 when the decision of the Tribunal was given orally at the conclusion of the hearings. The text of that oral decision is attached as an Appendix to these reasons.
BACKGROUND
Shaun Bradley Roberts was born (in 1986) in the United Kingdom, in Wales, and arrived in Australia on 17 May 2014. He was the holder of a Temporary Business Entry Visa class UC 457 which was valid until 8 August 2019.[1]
[1] Section 501 – G Documents at [25].
In the United Kingdom he obtained qualifications as a skilled bricklayer and worked at this trade, either as an apprentice or as a qualified tradesman, virtually continuously from 2003 until 2104 shortly before his departure for Australia.[2]
[2] Ibid at [36-39].
On 18 October 2016 Mr Roberts applied for a Skilled – Nominated (Permanent) (Class SN) visa. The application form was completed and submitted on Mr Robert’s behalf by his authorised migration agent.
On that application form there is a question which reads:
“Has the applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)?
To this Mr Roberts answered “YES”. In response to a further question on the form to provide details he stated:
“Please refer to UK Police Clearance, Statutory Declaration providing further explanation and two character references attesting to the Applicant’s good character.”[3]
[3] Ibid at [40].
On 2 May 2018 the Minister (via his Delegate) wrote to Mr Roberts informing him that the Minister was considering a refusal of his visa application under section 501(6)(d) of the Migration Act 1958 (the Act) on the basis that Mr Roberts did not pass the “character test” imposed under that legislation. The letter afforded Mr Roberts the opportunity to respond to the Minister’s notice of intention.[4]
[4] Ibid at [107-110].
A response, lodged on his behalf by a Migration Agent was lodged as required, although the document in question is undated.[5] However correspondence from the Department of Home Affairs suggests that this material was received on 28 May 2018.[6]
[5] Ibid at [111-114].
[6] Ibid at [6].
After giving those representations due consideration the Minister’s delegate decided, on 6 July 2018 to refuse the grant of a visa[7] and Mr Roberts was so notified by letter of 1 August 2018.[8]
[7] Ibid at [9].
[8] Ibid at [6].
Mr Roberts lodged an appeal against that decision with this Tribunal on 3 August 2018, by which time he was being held in immigration detention at Villawood.[9]
[9] Ibid at [1].
NOTIFICATION OF DECISION TO MR ROBERTS
The letter of 1 August (see above) was “delivered” electronically to Mr Roberts’ migration agent. The document states:
“Method of Delivery: Email: (name)@carman-associates.com.au.”
This is the correct address. However in the process of transmission, the email was addressed to:
(different name)@carmen-associates.com.au
The substitution of one name for another prior to the company address is a matter of no relevance, both were employees at that address. The problem arose however in the transposition of the letter “e” for the letter “a” in the word “carman.” As a result of this error the notification of the refusal decision was not received by Mr Roberts.
I have remarked previously on the problems which arise when correspondence is incorrectly addressed and made a determination in Park v Minister for Immigration and Border Protection[10] that such an error was sufficient, in that instance, to grant an extension of time to appeal against a ministerial decision.
[10] Park v Minister for Immigration and Border Protection [2018] AATA 2299.
MR ROBERTS DETENTION IN VILLAWOOD
It appears that on 1 May 2018 Mr Roberts was detained by Immigration officials and detained in the Villawood Detention Centre. Representations on his behalf claimed that because of the transmission error described above, Mr Roberts had never received notification of a final departmental decision and it then appears that this resulted in Mr Roberts being released from Villawood the following day.[11]
[11] Applicant’s Submissions at Tab 3 and Appendix O.
It appears that he was then detained again and placed back in Villawood on 1 August 2018.
THE DECISION TO REFUSE THE VISA
The power of the Minister (or their Delegate) to refuse or cancel a visa on character grounds is set out in section 501 of the Migration Act 1958 (the Act) as follows:
501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate—natural justice applies
(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.
Note:          Character test is defined by subsection (6).
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
Decision of Minister—natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the      character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
(3B) Subsection (3A) does not limit subsections (2) and (3).
(4) The power under subsection (3) may only be exercised by the Minister personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(6) 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
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; 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.
The Tribunal has set out this section of the Act in full because it reveals that cancellation or refusal decisions may be made on grounds which are either objective or subjective; self-evident or evaluative; mandatory or discretionary. For example, when a visa is cancelled/refused under section 501(3A) there are elements in that decision which are both mandatory – the visa “must” be cancelled/refused and objective – the applicant has “a substantial criminal record.”
This in turn is defined in section 501(7) of the Act:
Substantial criminal record
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an offence; and
(ii) the court has nonetheless found that on the evidence available the person committed the offence; and
(iii) as a result, the person has been detained in a facility or institution.
There is nothing discretionary or subjective about a decision in this instance. Once a condition precedent is established, automatic consequences follow.
Similarly, subsections 6(a), 6(aa), 6(ab), 6(e), 6(f), 6(g) and 6(h) of the Act can all be described as objective. An applicant has or has not met the criteria which are set out there – res ipsa loquitur. This is not a matter of dispute; it is a fact which can be proven.
By contrast sections 6(b) and 6(ba) depend upon the Minister forming an opinion in which the “Minister reasonably suspects” that something is the case. That is clearly a subjective test – it is up to the Minister to form an opinion which is “reasonable” in all the circumstances and clearly that decision can be either for or against the applicant.
Critically, in Mr Roberts’ case the ground upon which his visa has been refused is subsection 501(6)(d)(i).
Although cited above, its terms are worth repeating. It provides:
“(6) For the purposes of this section, a person does not meet the character test if:
(d) in the event that the person would be allowed to enter or remain in Australia there is a risk that the person would:
(i) engage in criminal conduct in Australia.”
Decisions here depend upon the decision-maker forming a view that there is a risk of something happening.
It is important to note the deliberate public policy decision to specify that there needs to be merely “a” risk to enliven the operation of subsection 501(6) of the Act. In 1998, passage of the Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct) Bill inserted a new regime into the Migration Act in the form of section 501(6). That legislation provided that in assessing the threat to the community there had to be a “substantial risk” that the applicant would offend. The Explanatory Memorandum to the Bill stated: “The requirement of “significant risk” is intended to reduce the current threshold of risk that a decision-maker can accept before making a finding that a personal will not pass the character test because they may engage in specified conduct.”[12]
[12] Explanatory Memorandum Migration Legislation Amendment (Strengthening of Provisions Related to Character and Conduct Bill 1998 (No.2) at page 13.
However in 2014, the Migration Amendment (Character and General Visa Cancellation) Act specifically removed the word “significant” from clause 501(6)(d) leaving it as “a” risk. On this occasion the Explanatory Memorandum stated:
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is 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.”[13]
[13] Explanatory Memorandum Migration Amendment (Character and General Visa Cancellation) Bill 2014 at page [10].
The Courts have held that this section involves not a subjective test, but one which requires “an evaluative judgement to be made.” [14] The decision of the primary judge in this case was set aside on appeal with the Full Court holding that: “The section provides that a person does not pass the character test if the decision-maker is satisfied that there is “a risk” that if the person were to remain in Australia he or she would engage in criminal conduct.”[15]
[14] Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 at [44] per Kerr J.
[15] Sabharwal v Minister for Immigration and Border Protection [2018] FCAFC 160 at [63].

Decisions still require a decision-maker to form a view about the prospect of something happening in the future (“a risk”), and while there may be objective data about previous events, their extrapolation into the future is a matter of evaluation not fact.
However some guidance about how to approach making such decisions is set out for the decision-maker in Annex A of Ministerial Direction 65 (The Direction). It provides in section 6:
Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a 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.
(2) The 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.
(3) It 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.
It is necessary at this stage to consider in more detail the relevance of Ministerial Direction 65.
MINISTERIAL DIRECTION 65
Under section 499 of the Act, the Minister is authorised to issue Directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.
Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation.
As far back as 1979 the Full Federal Court held that:
“If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[16]
[16] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [420].
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[17]
[17] Re Drake and Minister for Immigration and Ethnic Affairs (No.2)[1979] 2 ALD 634 at [640].
In 1981 the Full Federal Court warned that:
“On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[18]
[18] Nevistic v Minister for Immigration and Ethnic Affairs [1981] 34 ALR 639 per Lockhart J at [651-652]. See also Franki J at [642] and Deane J at [646].
In 1985 the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[19]
[19] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994 the Full Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[20]
[20] Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 33 ALD 13 at [28].
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded:
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[21]
[21] G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210].
This Tribunal draws heavily upon the recent decision by Senior Member PW Taylor SC in Aciek,[22] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity:
7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
[22] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.
THE TRIBUNAL “IN THE SHOES” OF THE DECISION-MAKER
The Tribunal is established as a merits-review body. Its responsibility is to review administrative decisions (made under legislation conferring such powers upon it) taking into account the merits of the case in question, the need to reach the correct and preferable decision in each individual case and to promote the objectives of good government.[23]
[23] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] 24 ALR 307.
It is important to state the general principles upon which the Tribunal must proceed in its own independent decision making. These may be summarised as including:
“The Tribunal’s duty is to make the correct and preferable decision in each case on the material before it, and the Tribunal is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”[24]
“The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct and preferable one on the material before the Tribunal.”[25]
“The decision under review, as distinct from the reasons for it, must be given no weight by the AAT. The decision is to be reviewed for the correct and preferable decision reached: the original decision itself cannot influence the AAT in reaching its conclusion.”[26]
“….in reviewing the Board’s decision, we must make the decision afresh and are not limited to a consideration of whether the Board’s decision was open on the evidence. We are not limited to the evidence before the Board.”[27]
“Davies J acknowledged that regard might be had to the decision of the primary decision-maker as part of the “material before the Tribunal”…….But ultimately, it was for the Tribunal to reach its own decision upon the relevant material, including any new, fresh, additional or different material that had been received by the Tribunal as relevant to its decision. In effect, this was no more than a consequence of the Tribunal’s obligation to conduct a true merits review.”[28]
“the A.A.T is an administrative decision-maker, under a duty arrive at the correct or preferable decision in the case before it according to the material before it.”[29]
[24] Re Drake and Minister for Immigration and Ethnic Affairs(No.2)[1979] 2 ALD 634 at [640].
[25] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [page 11].
[26] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworth, 4^th edition, 2015) at page 301 citing Collins v Minister for Immigration and Ethnic Affairs [1981] 4 ALD 198; Commonwealth v Twyman [1985] 8 ALD 554 and Re KLGL and Australian Prudential Regulation Authority [2008] AATA 542.
[27] Re Gooley and Companies Auditors and Liquidators Disciplinary Board and Australian Securities and Investments Commission [2000] 62 ALD 472 at [72].
[28] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
[29] Bushell v Repatriation Commission [1992] HCA 47 at [3] per Brennan J.
It is thus clear that although the original decision-maker has found Mr Roberts not to be a person of good character and to have determined that he fails the legislated character test, in this instance that decision is subject to merits review by the Tribunal on an evaluative basis.
As a result, it is up to this Tribunal, in the first instance, to determine whether or not Mr Roberts is a person of good character for the purposes of the grant of visa.
In the event that the Tribunal were to find that he was not, then it would be further incumbent upon it to consider whether there was “another reason” why the visa refusal should be set aside.
ANOTHER VISA APPLICATION
Although not in any direct way relevant to the Tribunal’s decision regarding the refusal of the Skilled – Nominated (Permanent) (Class SN) visa, the Tribunal notes from the documents before it that Mr Roberts has made other visa applications.[30]
[30] Section 501 – G Documents at [31].
As previously stated, Mr Roberts has some qualifications and an employment record as a bricklayer. In this capacity he applied for a Skilled – Independent (Permanent) (Class SI) subclass 189 visa under section 65 of the Act. This application was refused by the Delegate on 13 May 2016 on the basis that Mr Roberts did not meet the “points test” which is set out in Part 189 of Schedule 2 to the Migration Regulations 1994.
Mr Roberts appealed this decision to the Tribunal and on 28 August 2017, the Migration and Refugee Division of the Tribunal overturned that decision and concluded that Mr Roberts in fact met the requirements of the points test and it remitted this matter to the Department with a direction to this effect.[31]
MR ROBERTS’ RECORD OF CONVICTIONS[32]
[31] Roberts (Migration) [2017] AATA 1571. Copy in Section 501 – G Documents at [95-104].
[32] Section 501 – G Documents at [20-21].
Mr Roberts has a record of having broken the law. Between May 2003 and April 2014, while in the United Kingdom, he committed a number of offences.
The first of these was an offence in 2003 of damaging property for which Mr Roberts was issued with a reprimand in the Police Court.
He then made a number of appearances before a Magistrates court in 2004, 2006 and 2007.[33] Each of these related to traffic offences and resulted either in licence disqualification, fines of community (service) orders.
[33] Ibid at [21].
In 2010 he appeared before the same Magistrates on a charge of “using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation.” He was convicted and in addition to a fine was ordered to provide 100 hours of unpaid community service over a 12 month period.[34]
[34] Idem.
In April 2014 he appeared before the Glamorgan Valley Magistrates on the charge of “battery” which, upon conviction, resulted in a fine.[35]
[35] Ibid.
It is important to note that at no stage in the United Kingdom has Mr Roberts ever been sentenced to any term of imprisonment (suspended or otherwise) and indeed he has served no such term.
In Australia, there appear to be a number of minor traffic offences. These apparently include use of an unregistered vehicle (October 2015); driving in a bus-lane (camera detected, April 2015) and disobey traffic lights (November 2011).[36] There is no evidence before the Tribunal as to the outcome of any of these recorded offences other than to note that none of them resulted in a custodial sentence, or even a court appearance and indeed the Respondent notes that: “The applicant has no recorded criminal history in Australia.”[37]
[36] Tender Bundle at [7] and [13].
[37] Respondent’s Statement of Facts, Issues and Contentions at [11].
The only custodial period in Mr Roberts’ life appears to be his detention in the Villawood Immigration Detention Centre as outlined above.
ANALOGOUS CASES IN THE AAT
The AAT has considered a number of cases involving refusals of visa applications under the provisions of section 501 (6)(d)(i) of the Act.
In cases such as Denizgezen[38]; Intesir[39] and Morris[40] the decision of the Minister to refuse the visa was upheld. The common thread in all these cases was that the applicant was found to have committed serious offences and that his/her record and behaviour was such that the prospect of continued reoffending was regarded as substantial. In each of these cases offences had been committed in Australia.
[38] Ali Reza Denizgezen v Minister for Immigration and Border Protection (Migration) [2016] AATA 727.
[39] Asir Intesir v Minister for Immigration and Border Protection (Migration) [2017] AATA 503.
[40] Morris and Minister for Immigration and Border Protection (Migration) [2018] AATA 3374.
In Denizgezen (upheld on appeal[41]) the applicant had a record of violent offences (including kidnapping), breaches of family violence intervention orders and serious driving offences. In Intesir while all the offences appear related to driving offences and the misuse of alcohol, the behaviour displayed by the applicant, over a period of time, was one of persistent offences despite various interventions to prevent this. In Morris the matter concerned application for a partner visa and the Tribunal was unable to determine significant matters due to the applicant’s absence from Australia.
[41] Denizgezen v Minister for Immigration and Border Protection [2017] FCA 457 per Tracey J.
On the other hand there have been several recent cases in which the Minister’s decision has been set aside, revoked or remitted.
In Molloy the Tribunal found that “there is insufficient evidence to establish the applicant does not pass the character test”,[42] primarily given the very “low level” of the offending behaviour being held against the applicant. It found that: “When one looks at the circumstances as a whole there is insufficient evidence of anything more than a minimal or remote chance that the applicant would reoffend.” [43]
[42] Molloy and Minister for Immigration and Border Protection (Migration) [2017] AATA 2712 at [33].
[43] Ibid at [32].
The assessment process in these cases is a two-step one. In the first instance it is necessary to determine whether or not the applicant passes the threshold character test. If he/she does then it is not necessary to take matters further. If however the test is failed then the provisions of Direction 65 kick in and the Tribunal is required to determine if there is “another reason” for the decision to be varied.
In Molloy, although the Tribunal found that the applicant had not failed the character test, it nevertheless, for the sake of greater certainty, it proceeded to test the application against the requirements of Direction 65 and, using those tests, found again in favour of the applicant.
In Irani the Tribunal reviewed similar cases related to section 501(6)(d)(i). Senior Member Stefaniak came to the conclusion that: “Because there is more than a minimal or remote chance that he would engage in conduct specified under the Act, then it would seem this tribunal would not be able to say, at this point in time, he has necessarily passed the character test.”[44] It then went on, describing the applicant as: “…in all other respects, this is a man of good character”[45] to consider the provisions of Direction 65 and find in the applicant’s favour.
[44] Irani and Minister for Immigration and Border Protection (Migration) [2017] AATA 3051 at [146].
[45] Ibid at [147].
The same scenario was repeated in Bahrami where the applicant was found not to have passed the character test, but “another reason” was established for the revocation of the visa cancellation.[46]
[46] Miremad Bahrami v Minister for Home Affairs [2018] AATA 1332.
In Furlong, the Tribunal gave oral reasons for its decision, followed by subsequent publication of reasons. On this occasion the Tribunal considered the nature of the offences relied upon by the Delegate, and having found them to be at the lower end of any scale of offences, stated:
“Adopting a contextual and purposive approach to the interpretation of this provision I consider that the criminal conduct referred to in subsection 501(6)(d)(i) must carry the common meaning of the more serious offences then misdemeanours that involve lesser faults and omission such as traffic offences. There is no evidence that would suggest a risk of the applicant engaging in any criminal conduct of a more serious nature other than that to which he was convicted.”[47]
[47] Furlong and Minister for Immigration and Border Protection (Migration) [2017] AATA 3014 at [47].
In this case the Tribunal found that the applicant did not fail the character test and that apart from the minor offences, his behaviour in the community in recent years had been “exemplary”. Despite its threshold finding that the applicant did not fail the character test, the Tribunal, as in Molloy, still proceeded to test the application against the criteria in Direction 65, finding in them “another reason” to revoke the visa cancellation.
WHAT IS “GOOD CHARACTER”?
Obviously the central issue for this Tribunal is to determine, in the first instance, whether or not Mr Roberts is a person of “good character.” Section 501 of the Act, which establishes the character test, defines certain matters which, if present tor proven, demonstrate that the applicant is not a person of good character and thus does not pass that test. The Act itself does not define what “good character” means.
However this matter of definition has been addressed by the Courts. The most commonly accepted starting point is the decision of the Federal Court in Irving:
“Unless the terms of the Act and regulations require some other meaning to be applied, the words “good character” should be taken to be used in their ordinary sense, namely, a reference to the enduring moral qualities of a person, and not to the good standing, fame or repute of that person in the community.”[48]
[48] Irving v Minister for Immigration, Local Government and Ethnic Affairs [1996] 139 ALR 84 at [94] per Lee J.
The same Judge, in Godley[49] expanded this discussion:
51 The words "of good character" mean enduring moral qualities reflected in soundness and reliability in moral judgement in the performance of day to day activities and in dealing with fellow citizens. It is not simply a matter of repute, fame or standing in the community but of continuing performance according to moral principle. A person of ill repute by reason of past criminal conduct may nonetheless, on objective examination at a later stage in life, be shown to be a person reformed and now of good character.
52 A finding that a person is "not of good character" requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable from others as a person not of good character, a question not to be confused with characterisation by conduct alone.
54 Context, however, is important and may provide a broader meaning for such a term in appropriate circumstances having regard to the purpose to be served.
56 Before past and present general conduct may be taken to reveal indicia that a visa applicant is not of good character continuing conduct must be demonstrated that shows a lack of enduring moral quality. Although in some circumstances isolated elements of conduct may be significant and display lack of moral worth they will be rare, and as with consideration of criminal conduct there must be due regard given to recent good conduct.
61 The question the Minister had to determine was whether the applicant was at the time of the decision, a person not of good character. In making that determination the Minister had to have regard to not only past conduct, general or criminal, but present or recent conduct, whether general or criminal, and to circumstances relevant to the ascertainment of qualities of character to determine whether the applicant lacked such moral qualities so that it could be found as a fact that he was a person of not good character.
62 With regard to the criminal conduct considered, the whole of that conduct was past. There was no recent criminal conduct evidenced by a recorded conviction to which the Minister could give regard. In the absence of prosecution and conviction a finding that criminal conduct has occurred will rarely be available.
63 In having regard to the criminal conduct of the applicant the Minister had to assess the extent to which the particular offences showed moral turpitude and then have regard to the absence of such conduct thereafter and the extent to which it showed that lesser weight was attachable to past offences as indicators of moral worth.
[49] Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774.

His Honour also remarked that making such determinations “is not a mechanical exercise”[50] but one which must be attuned to all the relevant individual circumstances of any case.
[50] Ibid at [57].
Similarly, in Baker, the Tribunal opined:
“To prescribe that bad character will be forever assumed in the event of one conviction carrying a sentence of twelve months or more, no matter when the conviction took place, is quite unreasonable. It is necessary in assessing character to look at all relevant circumstances including the age of the convictions.”[51]
[51] Wendy Susan Baker v Department of Immigration and Ethnic Affairs [1995] AATA 13 at [43].
This formulation was expressly approved in the appeal judgement of the Federal Court which added that determinations should not be “concerned with whether the conduct has some temporal result, such as the incurring of a conviction, but with the light that the conduct throws in the actor’s character.”[52]
[52] Minister for Immigration and Ethnic Affairs v Baker [1997] 45 ALD 136 at [141].
EVIDENCE IN SUPPORT OF MR ROBERTS
In support of his application Mr Roberts has submitted a number of character references and testimonials.
·Mr Taylor, his employer writes of Mr Roberts’ skill as a bricklayer and of his economic value to his business, particularly in time of a “construction boom in NSW.”[53] In an updated reference Mr Taylor describes the applicant as “reliable, trustworthy and hardworking.” Importantly, he outlines his knowledge of Mr Roberts’ previous offences in the United Kingdom, attests to his remorse and indicates that he has never observed any aggressive behaviour on the part of Mr Roberts and his adherence to the company’s no-drinking policies monitored by random breath testing. It is a strong endorsement for Mr Roberts.[54]
·A fellow employee, Mr Cowen writes of Mr Roberts’ professionalism, team management and organisational skills. He states that his job and others may be at jeopardy if Mr Roberts were to be deported. He does not display any knowledge of Mr Roberts’ offences.[55]
·Nor does Mr Harris, a secondary school teacher who prides himself “on being a good judge of character.” He states that Mr Roberts is honest and trustworthy, a good communicator, with a sense of humour and totally unlikely to commit any sort of criminal offence.[56]
·Similar positive references are provided by Mr Sacilotto (a company director) and Mr Brady (a consultant in the construction recruitment area). Both speak of Mr Roberts’ good character, professional skills and generally ethical approach to life.[57] Finally there is a reference from Mr Roberts’ former flat-mate Mr Gittins describing him as a “good role model due to his great work ethic.”[58]
[53] Applicant’s Submission at Tab [G]. Letter dated 15 January 2017.
[54] Section 501 – G Documents at [137-138].
[55] Section 501 – G Documents at [139].
[56] Section 501 – G Documents at [140].
[57] Section 501 – G Documents at [142] and [143] respectively.
[58] Section 501 – G Documents at [106].
His former partner, Ms Deb Marks, writes that although the couple no longer share an intimate relationship, they remain close friends and associates and that Mr Roberts is assisting with the building of a granny flat on her property where he will continue to live and where he will also maintain a close established relationship with her parents.
She also remarks on Mr Roberts’ calm and cooperative behaviour when Border Force Officers arrived at their then shared home at 5.15 am on 1 May 2018 and took him into immigration detention – wrongfully, as it turned out.
She is aware of his past offences and states that these are “not a true representation of the man he is today.”[59]
[59] Section 501 – G Documents at [144-145].
Ms Marks’ statement is supported by a confirmatory reference from her father, Mr Neville Marks who states that: ‘we as a family trust him explicitly.”[60]
[60] Section 501 – G Documents at [105].
In his response to the cancellation Notice, Mr Roberts stated that “The uncertainty of the visa outcome contributed to the breakdown of my relationship with my Australian partner.”[61]
[61] Section 501 – G Documents at [129].
Ms Shannon London, who is Mr Roberts’ current partner also provided a reference of support in which she describes him as “hard working, reliable, humble, kind, considerate and loyal.” She speaks of the development of their relationship over a period of five months and her love and commitment for him. She has continued to maintain contact with him while he has been in immigration detention and describes this period of ten weeks as “extremely tough” and putting a strain on their relationship which, nevertheless persists strongly. She concludes her statement in with an interesting use of language saying: “I believe this label of being a threat to our community (501) to be irrelevant, his archaic criminal past has certainly been buried since moving and settling in Australia.”[62]
[62] Applicant’s Submission at Tab [4].
Ms Marks was called as a witness by the Minister. She gave testimony in support of her written submission and in particular emphasised the establishment and growth of the relationship between Mr Roberts and the members of her family. She related how she and Mr Roberts had been in an intimate relationship and that while this was now ended, they remained good friends. Under cross-examination it was evident that she knew the full details of Mr Roberts’ past convictions and that she believed him to now “deeply regret(s) his past indiscretions.”[63]
[63] Section 501 – G Documents at [144].
Ms London was required to appear as a witness by the Minister. She is Mr Roberts’ current partner and is the process of developing her own business as a yoga instructor. Although her relationship with Mr Roberts is of fairly recent origin it was obvious that they are deeply committed and that they have plans to cohabit and start a family.[64] During Mr Roberts’ recent period of incarceration in the Villawood Detention Centre they have maintained their relationship. Ms London was also well briefed on the details of Mr Roberts’ past offences and gave evidence that she believed him to now be quite a different sort of person and one with whom she would like to share a life in Australia.
[64] Applicant’s Submission at Tab [4].
Both Ms Marks and Ms London were impressive witnesses whose evidence was well informed and straightforward. They responded in an open and clear manner to cross-examination and have contributed greatly to the Tribunal’s capacity to make assessments on a number of relevant points in relation to Mr Robert’s current character.
A comprehensive report from Consultant Psychologist Mr Tim Watson-Munro was tendered. The report was based on extensive interviews with Mr Roberts conducted at Villawood on 22 and 29 August 2018. It is not necessary to give extensive details of this report other than to say that Mr Watson-Munro found Mr Roberts to be ”co-operative, articulate and well oriented”; “entirely pro-social (with) a prodigious work ethic” and has “positive aspirations for the future.”[65]
[65] Applicant’s Submission at Tab [R] at page [2].
The Respondent called into question certain aspects of this report to the extent that they state that Mr Roberts “expressed deep regret for his earlier judgment and misrepresenting the situation when filling out the relevant documentation.” Further, the report states: “He (Mr Roberts) conceded that he misled in the documents but claimed that he had been advised by his solicitor representing him at the time…”[66]
[66] Ibid at pages [2] and [4].
The Respondent put to the Tribunal that this was evidence that Mr Roberts had been willful about his misrepresentations. However it is open to the Tribunal (although this point was not pressed by the Applicant’s counsel) to equally believe that Mr Watson-Munro put to Mr Roberts the suggestion that he had misled the Department by giving false answers and that Mr Roberts had merely been agreeing with that proposition. The report reveals that Mr Watson-Munro had before him the Notice of Intention to Cancel[67] from which he would have been perfectly capable of deriving such information which he might well have put to his interviewee. There is no way of knowing, but equally there is no necessity to place upon this report the negative construction urged by the Respondent.
[67] Ibid at page [1].
WHAT IS THE MEANING OF “RISK”?
Questions of risk of future offending are notoriously difficult to assess. Direction 65 draws attention to matters such as the level of tolerance of the Australian community for any risk of future harm; the nature of that potential harm to the community and its likelihood “taking into account available information and evidence on the risk” of re-offending.[68]
[68] The Direction at 13.1.2
In order to make adverse findings against an applicant under section 501(6)(d)(i) the decision-maker must come to a conclusion that there is “a risk” that the person will engage in future criminal conduct.
There is guidance for this Tribunal in determining what constitutes “risk” in this context. This was provided by Deputy President Forgie in QKVH[69] as follows:
The word “risk” is not defined but its ordinary meanings when used as a noun, as it is in s 501(6)(d)(i), include the following which is relevant:
“... 1 the chance or possibility of suffering loss, injury, damage, etc; ..
Therefore, having regard only to the ordinary meaning of the word “risk”, the issue under s 501(6)(d)(i) becomes whether there is a chance or possibility of QKVH’s engaging in criminal conduct in Australia. The word “risk” must, however, be interpreted in its context and that is the context of the Migration Act and so in the context of who may, and may not, come to and/or remain in Australia. In that context, the word “risk” cannot be seen to mean simply a “chance or possibility” of a person’s engaging in criminal conduct in Australia for to do so would not take account of the realities of everyday life. Take, for example, members of the Australian community who drive a motor vehicle. Even if they have never done so before, there is a chance or possibility that any one of them may have a lapse in concentration or judgment and commit an offence against the road laws of a type for which a conviction may be imposed. That chance or possibility will, of course, be greater if the person has a history of traffic offences so that the risk of his or her doing so increases. Section 501(6)(d)(i) is not directed to the risk that a person will engage in criminal conduct if allowed to remain in Australia at what might be thought to be a theoretical level. It is directed to an assessment of risk at a level which is, as Direction No. 65 says, “... is more than a minimal or remote chance ...” of engaging in conduct which is, in this instance, criminal conduct. It cannot be set at a greater level than that for the word “risk” is not qualified by any adjective such as “significant”, “substantial”, “real”, any of which might have done so.
14.There is no question that QKVH has engaged in criminal conduct in the past but I am required to assess the risk of his doing so if permitted to remain in Australia in the future. His past conduct does, however, inform the future as do his actions and behaviour since his last offending.
[69] QKVH and Minister for Home Affairs (Migration) [2018] AATA 1855 at [13]-[14].
The assessment of risk must take into account all matters before the Tribunal. In Fu (Migration) [2018] AATA 732, this Tribunal, in assessing a student visa cancellation, stated in circumstances which I believe to be properly analogous:
“As noted in MZAJA v Minister for Immigration and Anor [2017] FCCA 448 at [15], the task of the Tribunal in respect of s 116(1)(e) is to assess the risk to the community based on all of the information available to the Tribunal.”[70]
[70] Fu (Migration) [2018] AATA 732 (3 April 2018) per Member Jan Redfern at [30].
The Tribunal notes that Direction 65 itself directs attention to what it states to be “an unacceptable” risk.[71] Clearly then, government policy recognises that there are some risks that are “acceptable”. Indeed the guiding Annex to the Direction refers to a “more than minimal or remote” chance before the provisions of the section are enlivened.[72]
[71] The Direction at 13.1.2 (1).
[72] The Direction at Annex A “Application of the Character Test”, section 6(2) “Risk in regard to future conduct (section 501(6)(d)).
Common sense demands no less – there cannot be any entirely risk free situations.
I respectfully agree with the comments of Senior Member M J McGrowdie in KDSP v Minister for Immigration and Border Protection to the effect, in relation to admittedly a different category of violence (as outlined by the Respondent), that:
“The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant’s behaviour, I would consider that the Australian community would not assume that the applicant will reoffend, that regard would be had to the fact that the applicant not only has served a jail sentence for his offending, but he has also been held in detention since his release from prison. I conclude that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a limited stay visa, with the applicant knowing that any infringement would likely result in a cancellation of that visa.”[73]
[73] KDSP v Minister for Immigration and Border Protection [2017] AATA 2169 at [36].
The Tribunal must rely upon the evidence before it in assessing the specific risk of re-offending. Siopis J expressed this as follows:
“It was a matter for the Tribunal to determine the evidence upon which it would place weight in assessing that question.”[74]
[74] Applicant in WAD 531/2016 v Minister for Immigration and Border Protection [2018] FCA 27 at [133].
FAILURE TO DISCLOSE RELEVANT INFORMATION
Paragraph 11.1.1.(h) of Direction 65 directs any decision-maker to take into account whether or not the applicant has provided “false or misleading information to the department, including by not disclosing prior criminal offending.”
The Respondent places in evidence details of eight incidents in which Mr Roberts’ failed to disclose his convictions in the United Kingdom as required. Five of these relate to his failure to answer the question on incoming passenger cards to the effect “Do you have any criminal conviction/s?”[75]
[75] Section 501 – G Documents at [26-30].
On his application for a Working Holiday Visa (August 2014) he answered “NO” to the question: “Have you ever been convicted of a crime of offence in any country (including any conviction which is now removed from official records)?”[76] He made a similar response to the same question on his application for a Long-Stay Temporary Business Visa (August 2015).[77]
[76] Section 501 – G Documents at [58].
[77] Section 501 – G Documents at [48].
The Respondent, in its original submission, then stated that there was a similar failure on Mr Roberts’ part “In his response to the Notice” and it cited a particular page in the Section 501 – G Documents submitted to the Tribunal.[78] Prior to the commencement of formal proceedings the Respondent withdrew this claim and agreed that Mr Roberts had provided a lengthy response to the question: “Do you believe that there are any factors that help explain your offences which should be taken into account by the decision-maker?”[79]
[78] Respondent’s Statement of Facts, issues and Contentions at paragraph [18.4].
[79] Section 501 – G Documents at [130].
In a Statutory Declaration dated 25 May 2018 which is clearly in response to the Department’s Notice, Mr Roberts details his previous convictions in the United Kingdom.[80]
[80] Section 501 – G Documents at [118-121].
In that Statement he refers to an earlier Statutory Declaration, dated 16 February 2018, in which he has set out in full the relevant details.[81]
[81] Section 501 – G Documents at [115-117]. In his 25 May 2018 declaration Mr Roberts mistakenly gives the date of this first declaration as 16.10.2018 when in fact it should be 16.02.2018. Section 501 – G Documents at [118].
In submissions on his behalf it is stated that:
“The Applicant had a genuine, albeit incorrect, belief that:
(i) Driving offences were not “criminal offences”
(ii) “spent” offences were “wiped from his record” and, therefore, did not have to be declared.”
The submission goes on to state that Mr Roberts “did not, intentionally, give false information on his “passenger cards” or visa application” and that: “There is no evidence that if the correct information was given, his visa application for entry would have been refused.”[82]
[82] Applicant’s Submission at Tab [1]. Submission by Applicant’s Solicitor dated 28 September 2018.
There is of course, no way of knowing whether or not the last assertion is correct and the Tribunal can place no weight on it. In any event that would not in any way obviate the need for correct information to be provided to the Department.
In this Tribunal I have taken a very negative view of applicants for visas who deliberately and knowingly provide false, incomplete or misleading information to the Department.[83]
[83] Nguyen and Minister for Immigration and Border Protection [2018] AATA 1082; Jianri Fang v Minister for Immigration and Border Protection [2018] AATA 3686.
However in those cases there has been a significant degree of deliberate attempts to conceal or deceive in relation to matters which the Applicants must have known were potentially fatal to their applications. The Tribunal does not believe this to be the case with Mr Roberts, although it accepts that Direction 65 does not require that the failure to provide accurate information must be deliberate.
The Tribunal accepts that he may have thought that driving offences were not “criminal” offences, although I presume they are so categorised in England and Wales. It also accepts that he thought that his offences were “spent”, although as will be seen in the section below, one of them may not have been at the relevant time.
The question on the incoming passenger cards does not explicitly refer to spent convictions. It is understandable, given what Mr Roberts has asserted in regard to his knowledge or belief about driving and “spent” convictions that he gave a false answer. The Tribunal however does not believe it was intended to deceive.
The failure to give correct information on the visa applications is a matter of greater gravity.
The Applicant’s counsel put to the Tribunal a particular construction of section 234(1)(b) of the Act which deals with providing to a decision-maker “a statement that, to the person’s knowledge, is false or misleading in a material particular.”
He advanced the proposition, as the Tribunal understands it, that in order for it to be determined that the applicant had provided false or misleading information, that information had to be of such a “material particular” as would have the effect of directly causing a particular decision to be made. This is not how the Tribunal reads this provision. It believes that the information provided was misleading and that Mr Roberts knew that he should have made a full disclosure of information, which he failed to do.
There is a fine, perhaps casuistic, distinction between failing to give information and deliberately giving false information; between not telling the whole truth and setting out to mislead deliberately. The Tribunal believes that Mr Roberts is guilty of the former but not of the latter. However it makes no material difference. He failed to complete his applications accurately.
On his current visa application full and correct information is provided. In reply to questions from the Respondent he said that this “change of heart” was as a result of taking advice from Ms Marks about how he should complete this application form, the others having been completed by paid migration agents, obviously under instruction from Mr Roberts. That having been said, it is not possible to know details of Mr Roberts’ instructions, but he bears the responsibility for their lack of accuracy.

These incidents do count to Mr Roberts’ disfavour and the Tribunal has not ignored them in coming to its final decision although it does not see them as having any relevance, at this stage, in relation to Mr Roberts’ future behaviour. He is intelligent enough to know what his responsibilities in this area are now.
SPENT CONVICTIONS IN ENGLAND AND WALES
Given the claims made by Mr Roberts about his understanding of his position vis-à-vis “spent convictions”, the Tribunal has sought to examine the relevant provisions as they would have applied in England and Wales to Mr Roberts’ convictions.
The legislative framework for the management of spent convictions in England and Wales is contained in the Rehabilitation of Offenders Act 1974 (UK) as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (UK). This legislation provides for convictions in England and Wales to become “spent” after relatively short periods of time. Section 139 of the latter Act is such that Mr Roberts’ fines would have been expunged from the record after a period of six months and his community service orders after a period of 12 months. This means that in relation to all but one of his offences, the rehabilitation/expiry period would have been completed by June 2011 and his offence of “battery” for which he received only a fine would have been rehabilitated/expired by December 2014, a date which overlaps with his arrival in Australia in May 2014 but which was well and truly completed by the time of his current visa application in October 2016.
CONSIDERATION OF THE NATURE OF MR ROBERTS’ OFFENCES
The Tribunal has an obligation to consider the nature of Mr Roberts’ offences and to come to some conclusion about their seriousness if they are to be used as the basis for making a decision as significant as the refusal of a visa and the attended prospect of deportation.
Mr Roberts’ offences are essentially related to driving offences and to issues of physical violence.
The driving offences include two related to driving “with excess alcohol”. There is no data before the Tribunal to establish what the level of “excess” was (in English and Welsh legislation) so that it can be compared with the graded system of proscribed content of alcohol offences (low/medium/high/range) used in New South Wales. Of course any level of alcohol in excess of the statutory limits is impermissible and a matter of concern for the Tribunal.
Mr Roberts states that on the first of these occasions, at age 17 he was stranded at a music festival and drove, knowing he should not have. On the second occasion he says that he was detected with excess alcohol in his system the morning after a night of drinking and would not have driven had he realised that the 8 hour gap which he describes was insufficient for the alcohol to have passed through his system.[84]
[84] Section 501 – G Documents at [115].
In Zaya Deputy President Kendall rightly deprecated “the tendency socially to dismiss laws that penalise drivers who drive under the influence as unnecessary or unfair.”[85] In Bowdler I made a point of reviewing the considerable weight of emphasis given by this Tribunal generally to assessing the risk to the Australian community posed by individuals who persistently and with disregard for the traffic laws endanger the lives and safety of other people.[86]
[85] Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 at [54].
[86] Bowdler and Minister for Immigration and Border Protections (Citizenship) [2018] AATA 347.
Mr Roberts also had offences related to driving while disqualified and failing to stop after an accident. Again Mr Roberts offers an explanation relating to his degree of maturity (aged 20) and his emotional state at the time.
The Tribunal notes that the Welsh magistrates, in relation to all of these offences imposed penalties (none of them custodial) which might be said to be in the mid-range of penalties.
The Tribunal has also noted that Mr Roberts appears to have incurred three traffic infringements in Australia: “use of unregistered registrable Class A motor vehicle/uninsured motor vehicle”; and two camera-detected infringements of disobey traffic light and drive in bus lane.[87] There do not appear to be any alcohol-related driving offences recorded in Australia or since 2006. The length of time since this last alcohol-related offence counts favourably for Mr Roberts despite him having a driving record which is far from perfect.
[87] Tender Bundle at [7] and [13].
As to the first of his “violence” offences, Mr Roberts states:
“I was 23 years old at the time and my friends’ home had been broken into and a number of items were stolen. My friends and I found out about who had committed the theft and we knew these people as they went to the same high school as my friends and I. We foolishly went to their house as the police had not acted on the matter. We spoke to the people and they admitted to the crime and handed back to us what had been stolen. As we were leaving they decided to taunt us and yell at us in the street. We responded, foolishly, which was then reported to the police.”[88]
[88] Section 501 – G Documents at [116].
As to the second, Mr Roberts’ explanation is as follows:
“the incident involved an altercation at the pub whereby a man approached me and starting using threatening language and behaviour. He threw punches at me and I was defending myself. My solicitor at the time advised that I pled guilty and that the offence would not appear on my record if did so (sic). The person who started the altercation had a number of assault charges and was known for this type of behaviour as I heard within the Court. I was shocked to see that this has appeared on my record after advice I received from my lawyers and I have contacted my solicitor in the UK to see why after the advice I was given that would not appear on my record. Had I known this would appear on my record, I would have defended the matter to its fullest extent.”[89]
[89] Ibid at [116-117].
There are of course, no police or court reports to substantiate the version of events given by Mr Roberts.
Mr Roberts was pressed over both of these events in cross-examination. From this it was established that in relation to the first charge Mr Roberts gave evidence that he was not involved directly in the melee and the exchange of offensive words because, at the time, he was busy placing the restored/rescued item (a child’s quad bike) in his van. He stated that all the people, on both sides of the melee had been charged and convicted. If Mr Roberts is taken at his word then this incident hardly seems to be of great moment in relation to the exchange of offensive words, although the idea that Mr Roberts and his friends should take the law into their own hands because of some perceived slackness on the part of the police is not encouraging.
In relation to the second it was established that although Mr Roberts claimed to be the victim of an initial assault, he responded in a way which involved punching his alleged assailant in the face and the two of them ending up struggling on the ground before being separated. He claims that his assailant was the one who then pressed charges, although he cannot have given evidence in court as apparently he died shortly thereafter from a drug overdose. It is unclear to the Tribunal why, in all those circumstances Mr Roberts apparently took advice to plead guilty rather than defend the charges but the tribunal has no way of knowing the full circumstances of this matter.
If the Tribunal accepts Mr Roberts’ version of events it would be hard to come to any conclusion other than that these acts of violence (as they are characterised by the Respondent) appear to be at a very low level and to be primarily reactive to external pressures or threats. There is no evidence that Mr Roberts has ever initiated any acts of violence or in any other way been a perpetrator.
The Tribunal does not believe that any reasonable person would characterise them as constituting a pattern of violent or criminal behaviour from which could be drawn rational conclusions about future behaviour.
THE PAST AS PREDICTIVE
“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.”
“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide to what will happen in the future.”[90]
[90] Minister for Immigration and Ethnic Affairs v Guo and Another [1997] 144 ALR 567 at [578] and [579].
This statement from the High Court clearly invites any decision-maker to establish the facts of past events and then determine the degree of probability of those facts being repeated and leading to a similar outcome. It also establishes that the decision-maker should establish, in their own minds, whether that degree of probability is high or low.
The question of high or low is important because the guide contained in the Annex to Direction 65 itself speaks of “more than a minimal or remote chance” of offending behaviour taking place. It is not a matter of there being merely a theoretical possibility (as noted by Deputy President Forgie in QKVH above) but rather that past evidence is sufficiently strongly suggestive or predictive that such an event will occur again.
The Minister’s Delegate had certain material before them upon which they felt secure enough to make their “evaluative” predictions. There is more material before the Tribunal, both in terms of further written submissions, but also, importantly, in terms of the Tribunal being able to make personal assessments of the Applicant himself and of the witnesses called on his behalf all of whom were subjected to cross-examination.
This access to the Applicant in a direct and personal sense is significant and its importance has been well described in the determination by Deputy President Rayment QC recently in JRJZ v Minister for Home Affairs.[91]
[91] JRJZ v Minister for Home Affairs [2018] AATA 3687 at [22].
THE TRIBUNAL’S CONCLUSION ABOUT GOOD CHARACTER AND RISK
After careful consideration of the material discussed above the Tribunal has come to the conclusion that Mr Roberts is unlikely to offend again. It believes that the risk of him offending is sufficiently small that it does not reach the threshold of being “more than minimal or remote” as established by the legislative scheme and ministerial direction.
As such it finds that Mr Roberts should be taken not to have failed the character test.
It follows that there is then no basis upon which to refuse his visa application when applying the requirements of section 65 of the Act. He passes the health requirement (section 65(1)(a)(i)); he meets the other prescribed criteria (section 65(1)(a)(ii)); he is not barred by any of the specified provisions (section 65(1)(a)(iii)) and he has paid the requisite fee (section 65(1)(a)(iv)). Once these sections are satisfied section 65 provides that: “the Minister …. is to grant the visa.”
RETURN TO DIRECTION 65: “ANOTHER REASON”
In the event that the Tribunal is wrong in coming to its conclusion that Mr Roberts is, at this moment, a person of good character who passes the statutory character test, the Tribunal will (as has been the case in similar instances) also give consideration as to whether or not, were Mr Roberts to be found not to be of good character, there is “another reason” for his visa denial to be revoked.
Ministerial Direction 65 enjoins the Tribunal to consider both “primary” and “other” considerations in coming to a decision on this matter.
The primary considerations are:
·The protection of the Australian community: in which the Tribunal must consider the nature and seriousness of the Applicant’s conduct and the risk which his/her remaining in Australia poses to the community.
The tribunal believes that it has canvassed this matter adequately in its discussion above and comes to the conclusion that the nature and seriousness of the offences in question are at the lower, or perhaps even lowest end of the scale of seriousness and the risk to the community of their being repeated is minimal to negligible. As such this criteria counts in favour of the Applicant.
·The best interests of minor children
There are no such children to consider and so this matter is of no further relevance.
·The expectations of the Australian community
Dealing with the expectations of the Australian community is always a difficult task for the Tribunal. Community expectations change over time and they vary according to the circumstances of each case. The Tribunal expects that they would be more favourable to people who have learned from previous experiences of offending and have made serious attempts to get their lives back together and to take active steps for their own rehabilitation. On the other hand they would be less inclined to view favourably those who have committed particular types of offences, persisted in offending behaviour and failed to take control of their own lives and act responsibly.
In cases such as YNQY and BFXK the Federal Court and this Tribunal have noted that this criterion starts off from a position of being, ipso facto and indeed, by intention, unfavourable to the applicant.[92] However as was stated in BFXK the degree of this unfavourability is to be assessed in relation to the individual circumstances of each applicant and each case.
[92] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; BFXK v Minister for Immigration and Border Protection [2018] AATA 886 at [126].
In Murphy v Minister for Immigration and Border Protection[93], Senior Member Taylor SC wrote:
[58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.”
[93] Murphy v Minister for Immigration and Border Protection [2018] AATA 750.
The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[94] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in visa refusal cases should be considered.
[94] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [68].
Deputy President McCabe in Do and Minister for Immigration and Border Protection[95] reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations… As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful… after all: we are a nation built on second chances.
[95] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
Two other recent cases are relevant for noting. In Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, “in recognition (of) his life changes” [96]since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[96] The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
In Dinkha, I wrote that:
“Neither the Australian community, nor this Tribunal, is averse to giving people a second chance. However, those second chances are not automatically available; they have to be earned.”[97]
[97] Dinkha v Minister for Home Affairs [2018] AATA 3037 at [113].
I believe Mr Roberts has made such an effort in recent years and particularly since his arrival in Australia and has, to that extent, earned a second chance.
The Tribunal has thus come to the conclusion that, in terms of fair-minded and informed members of the Australian community their expectation in relation n to Mr Roberts would be to allow him to stay in Australia and get on with building a productive life here.
OTHER CONSIDERATIONS
The Tribunal must then go on to consider what are outlined in the Direction as “other” considerations. As Colvin J has made clear, “To treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.”[98] His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.
[98] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28].
The “other” consideration in the Direction, in relation to visa applications[99] are:
·International non-refoulement obligations
[99] Direction 65 section 12.
In this instance no such obligations arise.
·Impact on family members
Mr Roberts does not have any family residing in Australia and as such their interests are irrelevant. Evidence established that Mr Roberts has a close and ongoing relationship with his former partner, Ms Marks and with members of her family. The Tribunal noted how members of this family were present at its hearings to support the Applicant. He is currently in a relationship with an Australian partner which appears to be a deep, loving and genuine one. The Minister contends that this relationship does not satisfy the requirement to have regard to the interests of the “immediate family members” as specified in clause 12.2 of the Direction. The Tribunal has to agree that that is the way in which the Direction has to be read, but it nevertheless recognises the existence of the relationships to which Mr Roberts refers and in particular does not seek to diminish the significance of his relationship with Ms London.
·Impact on victims
There are no matters for consideration under this criterion.
·Impact on Australian business interests: this criterion is qualified (clause 12.4) to focus on impacts on businesses where an adverse decision might “compromise the delivery of am major project or delivery of an important service in Australia.
Mr Roberts advances evidence that he plays an important role in the success of a small business in Australia, but that that business, and himself, are often involved in the delivery of major infrastructure projects. He presents evidence about a number of those with which he has been engaged.[100] He contends that weight should be given to evidence of skills shortages in the areas in which he has expertise and experience.[101] There is evidence (referred to above) from Mr Roberts’ employers and workmates as to the important role he plays in their business and the employment of fellow workers.[102]
[100] Section 501 – G C Documents at [175-253].
[101] Ibid at [146-152].
[102] Ibid at [138].

On the other hand the Minister contends that this level of business activity fails to meet the threshold specified in clause 12.4 of the Direction.
At the request of the Tribunal, the Respondent was good enough to provide some authority on this point. In both Alam and Ayache the Tribunal considered submissions from applicants in relation to their employment position and the impact their removal might have on either this or the prospective position of their employer. In both instances the Tribunal dismissed or gave little weight to those submissions. In Mr. Alam’s case much of his career was in prospect rather than current and there was no evidence that he was involved in the delivery of any major project or service[103]. In Mr Ayache’s case the evidence did not demonstrate that his services were particularly pivotal to the business enterprise concerned.[104]
[103] Alam v Minister for Immigration and Border Protection [2017] AATA 1233 at [75].
[104] Ayache v Minister for Immigration and Border Protection [2018] AATA 310 at [84].
The Tribunal is in a somewhat ambivalent position in relation to this criterion in that while Mr Roberts certainly is not involved in major projects, as the Minister defines them, there is evidence that he plays an important part in the management of projects up to a value of $9 million,[105] which is not insignificant. He has some leadership and involvement in the delivery of “an important service”, namely the construction of homes and schools which provides a benefit to the Australian business and general community.
[105] Section 510 – G Documents at [143].
In the absence of any statutory definition of what constitutes “an important service”, the Tribunal is inclined to see the retention of skilled workers in an area of workforce shortage as being a factor which could, legitimately, be counted to some degree in Mr Roberts’ favour.
CONCLUSION AS TO “ANOTHER REASON”
It will be seen from the above that the Tribunal is persuaded that analysis of both the primary and other considerations under the Ministerial Direction led to a conclusion that they weigh in the Applicant’s favour.
Having found that he does not pose a risk to the protection of the Australian community; that its expectations (in this instance) would be to allow him to stay and that there would be some impacts on the interest of business in Australia; it follows that an overall conclusion must be in his favour.
By contrast there appear to be no negative conclusions to be drawn from any of the other criteria, all of which are, in effect, largely irrelevant in any case. In the Tribunal’s mind this establishes the existence of “another reason” for the Minister’s decision to be set aside.
All decisions of this nature must, of necessity, be something of a balancing act. There is the past, in which Mr Roberts has a history of offending, there is the present in which he come before the Tribunal with evidence of a change in his life and there is the future in which, again going by the evidence, there is a strong presumption of his becoming a worthwhile and contributing member of the Australian community.
The Tribunal was impressed with Mr Roberts as a witness. He appeared genuinely remorseful and, perhaps for the first time, conscious of the fact that his past behaviour could have consequences threating the sort of future he now envisages for himself.
The Tribunal is prepared to consider his offences as being, in relation to his driving, not altogether untypical of certain patterns of irresponsible youthful behaviour, unacceptable as that may be. His “violence” offences can, in this instance, be ascribed to a degree of youthful indiscretion, influenced by his rugby/drinking environment and company. The Tribunal accepts that in Australia Mr Roberts has significantly changed his environment and his lifestyle and has made genuine efforts to establish a network of personal relationships supportive of a more responsible and adult approach to life. It accepts that he is a genuinely changed man.
As such he is at least entitled to the sort of “second chance” referred to by Deputy President McCabe when he described Australia as “a nation built on second chances”[106] and where, in the words of this Tribunal that second chance has been genuinely “earned”.[107]
[106] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
[107] Dinkha and Minister for Home Affairs (Migration) [2018] AATA 3037 at [113].
DETERMINATION
The risk of Mr Shaun Bradley Roberts offending if allowed to remain in Australia is assessed as being of a sufficiently low threshold as to fail to meet the requirements necessary for his visa application to be refused.
As of the date of the Tribunal’s decision, for the purposes of section 501 of the Migration Act 1958, Mr Shaun Bradley Roberts is found to be a person of good character and it follows that that he does not fail the legislated character test.
In the event that I am in error in this conclusion the Tribunal has determined that there exists “another reason” why the decision of the Minister should be set aside.
DECISION
This leads to the Tribunal’s formal decision in the following terms:
The decision of the Minister’s delegate, made on 6 July 2018, to refuse the issue of the visa applied for is set aside and remitted to the Minister for reconsideration with a direction that the visa applied for be not refused on character grounds under section 501 of the Migration Act.

I certify that the preceding 172 (one hundred and seventy two) and following 47 (forty seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

.............................[sgd]..........................................
Associate
Dated: 23 October 2018

Date(s) of hearing: 9 & 10 October 2018

Solicitors for the Applicant: Turner Coulson Immigration Lawyers

Solicitors for the Respondent: Sparke Helmore Laywers
APPENDIX
ORAL DETERMINATION
10 October 2018

In Hamlet’s famous soliloquy he identifies one of the things which disturbs the tranquillity of the ordinary soul as “the law’s delay.”
Although this Tribunal is not a court of law in the Chapter 3 of the Constitution sense, it is nevertheless charged with a role in the system of national administrative law. Its responsibilities are to make an independent assessment of the material presented to it and to come to the correct and preferable decision on that material (Drake No. 2). It has a further role in promoting the objects of good government in Australia (Gungor / Brian Lawlor.)
Despite not being a court, it should not be seen as immune from the recent strictures of former High Court Justice Dyson Heydon drawing attention to the lengthy and often unnecessary delays that can occur when deliberative bodies fail to give their decisions in a timely fashion.
This is particularly the case where the applicant is in some form of detention or facing the daunting prospect of deportation. The impact of disturbing uncertainty upon them should be minimised, as far as possible.
In cases such as this, the legislation imposes a deadline for decisions to be published, with a default position that, failing this, the decision of the Minister is affirmed. In the case of Mr Roberts that deadline is October 24, 2018, some two weeks away.
To the extent that the Tribunal feels confident of its decision at this stage, there is no reason that an oral statement of that determination should not be given, which is what I propose to do. I believe that, having read and considered all the written material before the Tribunal and having had the benefit of hearing the oral evidence from the Applicant and various witnesses, together with the benefit of submissions from both parties, the Tribunal can so proceed.
This summary statement will be supplemented by the publication, on or before 24 October of a full and comprehensive set of reasons. It will thus not be necessary for the parties to make a formal request under section 43(2A) of the Administrative Appeals Tribunal Act1975 to be furnished with a copy. It will be provided automatically.
Although this is an unusual procedure in such cases, it is not without precedent and was adopted in December 2017 by Senior Member Britten-Jones in Adelaide in the case of Furlong and Minister for Immigration and Border Protection.
I will give but a brief explanation of my findings, which will, as I have said, be supplemented by a comprehensive set of written reasons.
The Applicant, Mr Shaun Bradley Roberts is seeking a visa to allow him to remain in Australia where he has resided for a number of years and where he has been employed as a skilled bricklayer.
The Minister, through his Delegate, has denied that visa on the grounds that Mr Roberts, by virtue of his previous criminal behaviour, at material times and in material circumstances, not revealed to the Australian authorities, poses a risk to the community, in that he will reoffend if he is allowed to remain.
As such, he is taken to have failed the character test which is imposed by section 501 of the Migration Act1958 and which applicants for visas must pass or satisfy.
Mr Roberts has committed no offences, other than minor traffic infringements, in Australia. All his relevant offences (for this purpose) were committed in the United Kingdom between May 2003 and April 2014.
In essence they consist of
·two counts of driving with excess alcohol in his system, although his level of excess is unspecified in documentation and hence what this means in Australian terms (low, moderate, high levels of PCA) is unclear. Regardless of that, they were offences and breaches of the law against drink driving. The last of these offences was in 2006, more than ten years ago
·one count of driving while disqualified and failing to stop after or report an accident
·one count of damaging property, also involving fail to stop after or report an accident which took place in 2003
·two offences involving violence.
While not denying any of these convictions, none of which resulted in custodial sentences, but rather in a series of fines and bonds, Mr Roberts has put to the Tribunal his version or explanation of how these offences came about and the Tribunal is prepared to accept what he said in evidence which was tested by effective cross-examination by the Respondent.
The Tribunal also notes that Mr Roberts apparently completed all the community service and unpaid work orders or bonds imposed by the Courts.
Without in any way minimising the importance or gravity of driving offences, and expressing some degree of concern that Mr Roberts’ tends to dismiss them as less serious because they occurred some years ago, the Tribunal does not regard these as being fundamentally fatal to the applicant’s capacity to pass the character test.
However acts of violence must be taken very seriously and in this respect, in the absence of independent police reports about the incidents in question, the Tribunal must rely upon the testimony of the Applicant as tested in cross-examination before it. The Tribunal will elaborate on these matters in its full statement of reasons.
The failure to disclose relevant and material information about these prior offences and convictions is likewise a serious matter. The integrity of the Australian immigration system depends upon applicants, and others, giving accurate and complete information to the relevant authorities and in no way seeking to mislead them either by acts of commission or acts of omission.
In this case Mr Roberts failed to disclose details of his convictions on several passenger entry cards and in at least two visa applications. The fact of this non-disclosure is not in question.
In his defence Mr Roberts pleads that he did not understand driving offences to be “criminal offences” and that he believed that his convictions in the United Kingdom had become “spent” and thus were no longer required to be disclosed. As my full reasons will show, at least one of Mr Roberts’ convictions was, at the relevant time, not spent under English and Welsh law and in any event the visa applications make it clear that spent convictions are to be disclosed.
It also cannot be denied that on repeated occasions and in several documents Mr Roberts has asserted that the majority of his offences occurred when he was a minor or a teenager. This is not the case – the majority occurred after he had reached adulthood. The Tribunal can understand the temptation to seek to minimise the seriousness of matters by pleading some form of innocent youthfulness, but in the end, because it is not truthful, it does no credit to the Applicant.
It is then necessary to assess what risk Mr Roberts’ poses were he to be allowed to remain in Australia. In making this assessment the Tribunal must consider the material before it, the submissions of the parties, the evidence of the witnesses and the testimonials submitted on Mr Roberts’ behalf. I have done so.
Assessment of risk is not easy. Clearly there are no entirely risk-free situations, as both common sense and Deputy President Forgie in her decision in QKVH and Minister for Home Affairs make clear.
Guidance on how decision-makers should approach this question is provided in both Ministerial Direction 65 and in Annex A to that Direction. The Annex speaks of risks which are “more than minimal or remote”. As the Respondent rightly points out, this is a relatively low threshold. That said, it nevertheless provides some basis for the Tribunal to undertake its own assessment.
Similarly there is extensive judicial authority, as well as ministerial direction as to what constitutes “good character”. Of this it needs to be said that two elements are crucial: first, that this refers to enduring moral qualities and secondly that character has to be assessed by a consideration of both past behaviour (with appropriate predictive value) and current standing.
The role of the Tribunal is to stand in the shoes of the original decision-maker and, on the basis of the material before it, at the present time, and regardless of any previous determinations, come to its own independent decision.
When a ministerial decision is challenged with the appeal that it be set aside, overturned, remitted or revoked then there is a two stage process involved. In the first stage the Tribunal must determine whether or not the Applicant is, or is not, of good character and hence passes or fails, the character test. In the event that he or she does, then it is not necessary to go further, that alone may suffice.
In the event that the applicant does not pass the character test the Tribunal is required at the next stage to consider whether there is “another reason” for the original decision to be varied.
Both the legislation and the Ministerial Direction indicate that in seeking to determine whether or not another reason exists there are certain things which must be considered.
There are what are referred to as “primary considerations” namely, the safety and protection of the Australian community, the best interests of minor children in Australia and the expectations of the Australian community.
In relation to visa applications, there are then several “other” (although not secondary or lesser – (Suleiman)) considerations which include any potential international non-refoulement obligations, the impact on families or victims in Australia and the impact upon Australian businesses.
As will be seen from my written reasons I have made determinations on both questions, namely that of good character and on each of the items specified in the Ministerial Direction.
The Tribunal has taken into account evidence presented by Mr Roberts in which he accepts responsibility for his action and expresses his remorse which I am prepared to accept is genuine.
There is some evidence that Mr Roberts’ lifestyle and approach to his personal relationships and responsibilities has matured since he left Wales and that he is genuinely committed to making a life in Australia based upon acceptance of the norms and values of Australian society, including respect for its laws.
I acknowledge that he has formed close relationships in this country, which may be impacted were he not allowed to remain, including those with his former partner and her family and, more recently those with his current partner which envisage a committed life together and the establishment of a family. I am however bound to observe that the Ministerial Direction is focussed upon family membership in Australia whereas Mr Roberts’ biological family remains in Wales.
Finally I note that he has maintained a lengthy period of full-time and productive employment, in an important industry, with an increasing degree of responsibility placed on him by his employers.
As I have noted, and as the High Court has made clear (Shi’s Case) the Tribunal must make an assessment of Mr Roberts’ risk of reoffending as of today (10 October 2018).
In that respect it needs to determine the extent to which Mr Roberts has eschewed a previous pattern of disrespect for the law, albeit not at quite the level of pathology as suggested by the Respondent, and has, in the colloquial sense “turned his life around”.
In this respect I have taken into account the evidence which he has given and the evidence of Ms Marks and Ms London all of which was tested by effective cross-examination by the Respondent.
I have also considered the references supplied and the consultant psychologist’s report provided. I have found the latter document particularly useful in terms of its reference to Mr Roberts’ “pro-social” and “prodigious work ethic” approach to life.
I feel safe in concluding that Mr Roberts’ approach to life and to his responsibilities is much more mature and considered than it was prior to his arrival in Australia.
Above all, I have looked at Mr Roberts’ past convictions, his current status and behaviour in Australia, his explanations for failing to conform to the requirements of Australian law (the false declarations) and whether or not allowing him to remain would constitute more than a minimal or remote risk to the safety and welfare of the Australian community.
I do not believe that it would.
For the reasons which will be set out in full in my determination, I have come to the following conclusions:
(i)The risk of Mr Shaun Bradley Roberts offending if allowed to remain in Australia is assessed as being of a sufficiently low threshold as to fail to meet the requirements necessary for his visa application to be refused.
(ii)As of today, for the purposes of section 501 of the Migration Act 1958, Mr Shaun Bradley Roberts is found to be a person of good character and that he does not fail the character test as prescribed.
(iii)In the event that I am in error in this conclusion, I have determined that there exists “another reason” why the decision of the Minister should be set aside.
This leads to the Tribunal’s formal decision in the following terms:
The decision of the Minister’s delegate, made on 6 July 2018, to refuse the issue of the visa applied for is set aside and remitted to the minister for reconsideration with a direction that the visa applied for be not refused on character grounds under section 501 of the Migration Act.
I thank all parties for their assistance to the Tribunal in these proceedings and I say specifically to the Applicant that the Tribunal trusts that his behaviour in the future will be such as to cause no regret to the Tribunal for having made this determination.

Date(s) of hearing:	9 & 10 October 2018
Solicitors for the Applicant:	Turner Coulson Immigration Lawyers
Solicitors for the Respondent:	Sparke Helmore Laywers