Roberts and Minister for Home Affairs (Migration)

This matter concerned an appeal by Shaun Bradley Roberts against the Minister for Home Affairs' decision to refuse him a Skilled – Nominated (Permanent) (Class SN) visa. Mr Roberts, a UK national who arrived in Australia in 2014, had answered "YES" to a question on his visa application regarding previous convictions, but provided limited detail. The Minister's delegate subsequently formed the view that Mr Roberts did not pass the character test under section 501(6)(d) of the Migration Act 1958, leading to the visa refusal. Mr Roberts appealed this decision to the Tribunal.

The primary legal issue before the Tribunal was whether Mr Roberts satisfied the character test as defined by the Migration Act 1958. This required the Tribunal to consider Mr Roberts' past criminal conduct, including driving offences involving excess alcohol, driving while disqualified, failing to stop after an accident, and offences involving violence, in light of the criteria set out in section 501(6) of the Act. The Tribunal was also required to assess the weight to be given to various primary and other considerations under Ministerial Direction No. 65, such as the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community.

The Tribunal reasoned that while Mr Roberts had a criminal record, including offences involving violence and driving under the influence, these convictions were largely spent under UK legislation at the time of his visa application. The Tribunal considered the nature of the offences, noting that the specific alcohol levels for his driving offences were not provided, and that Mr Roberts had offered explanations relating to his maturity and emotional state at the time of the offences. It also took into account numerous character references provided by his employer, colleagues, and former partner, which attested to his good character, work ethic, and remorse for his past actions. The Tribunal found that the evidence did not establish a significant risk of future criminal conduct or that Mr Roberts would be a danger to the Australian community.

The Tribunal set aside the delegate's decision to refuse the visa and remitted the matter to the Minister with a direction to grant the visa. This outcome was based on the Tribunal's assessment that, despite the criminal history, Mr Roberts had demonstrated he passed the character test, particularly when considering the mitigating factors and positive character evidence presented.