Shangula and Minister for Home Affairs (Migration)

[2018] AATA 4013

Shangula and Minister for Home Affairs (Migration) [2018] AATA 4013 (12 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0620

Re:Fuad Shangula

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date of decision:                   12 October 2018

Date of written reasons:        22 October 2018

Place:Melbourne

The Tribunal sets aside the decision under review and remits the decision to the Respondent with the finding that the Applicant passes the character test under section 501(1) of the Migration Act 1958.

...........[sgd].............................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – refusal of visitor visa – consideration of character test – single offence – wholly suspended and short sentence – probation period now expired – absence of other offending – risk of applicant engaging in criminal conduct in Australia – assessment of risk – applicant satisfies character test – decision set aside and remitted to Respondent – written reasons requested

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 43(2A), 43(2B)
Criminal Code (Denmark), ss 56(1), 244
Migration Act 1958 (Cth), ss 338, 347, 501

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth), Sch 1, item 11.

Cases

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Du Pont and Minister for Immigration and Ethnic Affairs, Re: (1983) 5 ALN N143
Lam and Minister for Immigration and Multicultural Affairs, Re: [1999] AATA 56
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1983) 112 ALR 198
Minister for Immigration & Multicultural Affairs v “SRT” [1999] FCA 1197
Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 66; (1992) 110 ALR 449
Negri v Secretary, Department of Social Services (2016) 70 AAR 103

Secondary Materials

Migration Act 1958 – Direction No. 65 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (dated 22 December 2014)

House of Representatives – Explanatory Memorandum – Migration Amendment (Character and General Visa Cancellation) Bill 2014 (dated 24 September 2014)

REASONS FOR DECISION

Senior Member D. J. Morris

22 October 2018

BACKGROUND

1. Mr Fuad Shangula (the Applicant) was refused an eVisitor (Class TV) (subclass 651) visa by a delegate of the Minister for Home Affairs (the Minister) on 9 January 2018, acting under section 501(1) of the Migration Act 1958 (the Act).  The delegate was not satisfied that the Applicant passed the character test under the Act.

2. The Applicant’s brother, Mr Muneer Shengola, an Australian citizen resident in Australia, brought to the Tribunal an application for review of this decision. His right to do so stems from the fact that his brother appointed Mr Shengola as an authorised recipient (G Documents, p 147) and from the class of the visa refused (see sections 338(6)(c) and 347(2)(b) of the Act).

   THE HEARING

3. A hearing was held on 11 and 12 October 2018.  Mr Muneer Shengola made submissions on behalf of his brother and gave evidence, and was cross-examined by Ms Rachel Noronha of Clayton Utz, representing the Minister.  The Applicant also gave evidence by telephone.  The Tribunal was assisted by interpreters in the Arabic language.

4. At the conclusion of the hearing the Tribunal set aside the decision under review and gave oral reasons for that decision. On 15 October 2018 the Respondent made a written request pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) for a statement in writing of the reasons for the decision.

5. The Tribunal therefore provides reasons in writing for the decision which, in accordance with section 43(2B) of the AAT Act, include findings on material questions of fact and a reference to the evidence or other material on which those findings were based.

6. In Negri v Secretary, Department of Social Services (2016) 70 AAR 103 (Negri), Bromberg J considered a matter before the Tribunal where an oral decision had been made and a statement of written reasons had been subsequently supplied. His Honour stated at [27]:

   … as long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).

7. These reasons have been written consistent with the approach suggested in Negri.  New reasoning for the decision has not been introduced, but this written statement is a fuller explanation of the reasons given orally on 12 October 2018. The Respondent tendered a volume of documents (G Documents) lodged by the Minister on 12 April 2018, which were taken into evidence.

8. Mr Muneer Shengola tendered the following documents, which were also taken into evidence:

   ·A letter dated 19 February 2018 from the Director, Visa and Citizenship Program Management Coordination Section of the Department of Home Affairs (Exhibit A1);

   ·A group of emails between Mr Muneer Shengola and Mr Julian Hill, MP, Member for Bruce (Exhibit A2);

   ·Letters (2) dated 24 January 2018 from Ms Irene Moen Sondergaard, Social Worker, Danish Probation Service (Exhibit A3);

   ·Letter dated 15 December 2017 from Mr Julian Hill, MP (Exhibit A4);

   ·Photographs of various medication taken by the Applicant (Exhibit A5);

   ·A receipt for translation from Danish to English (Exhibit A6); and

   ·Email dated 8 February 2018 from Mr Muneer Shengola to Mr Julian Hill, MP, with reply of the same date (Exhibit A7).

   REASONS FOR DECISION

9. Mr Fuad Shangula is a 54 year old dual Danish-Iraqi citizen, who resides in Aalborg in northern Denmark.  He has lived in Denmark since 1997 and holds a Danish passport. 

10. On 7 July 2017 Mr Shangula applied on-line for an eVisitor (Class TV) (subclass 651) visa.  Passport holders from specified countries are eligible to apply for this class of visa and Denmark is one of those specified countries.  Mr Shangula sought to visit Australia to attend the wedding of his niece in January 2018, and to visit other members of his family who live in Australia. 

11. The visa application form includes the question: Have you ever been convicted of an offence in any country (including any conviction which is now removed from official records)?  To this question, Mr Shangula answered “Yes.”

12. He then wrote:

    I have never in my entire life been charged with anything until a few months ago when I went through a divorce.  My ex-wife accused me of being violent in order to take our two sons away from me.  The court in Denmark had to give me the mildest penalty because there is no evidence that shows she is right nor evidence that shows I haven’t done the things she says.

13. Mr Shangula wrote that he was given a suspended sentence with a condition of supervised contact with the Danish probation service for one year.  The Department of Home Affairs (the Department) wrote to Mr Shangula requesting further information on 10 July 2017 (G Documents, p 155).  Mr Shangula provided a Danish Private Criminal Record certificate (G Documents, p 29) which read:

    Fuad Sliwa Boya Shangula
    Personal identification number in Denmark [redacted]
    Is registered in the Danish criminal records bureau (Det Centrale Kriminalregister] pursuant to section 11 in the Danish order regarding the treatment of personal information with the following rulings:

    1.    Suspended Sentence

    9th May 2017 at the Magistrates’ Court in Aalborg
    30 days imprisonment
    Conditions until 9^th May 2018
    For section 244 in the Danish Criminal Code
    Pursuant to Section 56, subsection 1 in the Danish Criminal Code
    Against a suspension period of 1 year from the final ruling
    Under supervision from the Danish Probation Service and after-care service

    Jens Henrik Hojbjerg
    The Commissioner of Police

14. On 21 December 2017 an officer of the Department sent to Mr Muneer Shengola a Notice of Intention (G Documents, p 44) to consider refusal of Mr Fuad Shangula’s visa application under section 501 of the Act. The Notice invited him to complete a Personal Circumstances form, which he did on 27 December 2017 (G Documents p 82),

15. The Applicant provided (G Documents, p 33) a copy of the record of judgment of Judge Katrine Waagepetersen of the Magistrates’ Court in Aalborg, heard on 9 May 2017, together with an English translation dated 16 May 2017.  The translation was done by an official police interpreter in the Danish legal system.  Relevantly, as reflected in the criminal record certificate, the Court found that Mr Shangula was guilty of the offence of actual bodily harm under the Danish Criminal Code.

16. The particulars of the offence found proven by the Court are that from January 2012 to August 2016 Mr Shangula had hit his minor son (born 31 December 2007), on the head with an open hand, and kicked him once.

17. The penalty imposed by the Court was 30 days’ imprisonment under section 244 of the Danish Criminal Code.  The Court stated that the penalty shall not be executed (i.e. will be a suspended sentence) if Mr Shangula observes the following conditions (section 56(1) of the Danish Criminal Code):

    ·The accused may not commit any offences during a trial period of 1 year from the final ruling.

    ·The accused must be under probation from the prison services during the trial period.

    ·The accused and the Danish Treasury shall each pay half the cost of the Court case.

18. The Tribunal noted that the Court relied on a statement from the Applicant’s son made by video recording (G Documents, p 35).  The Court also had statements from Mr Shangula’s former wife and his older son.  There were other charges before the Court which were found not to be proven.

19. Section 501 of the Act empowers the Minister, or the Minister’s delegate in this case, to grant or cancel a visa if a person does not pass the character test.

20. As a consequence, it first must be determined if a person has failed the character test and, secondly (if the person has failed) then the task of the decision-maker is to determine whether to exercise the discretion to refuse to grant or cancel the visa.

21. Section 501(6) of the Act sets out the grounds for failing the character test. Relevantly in Mr Shangula’s case, the delegate in refusing his application for the visa relied on section 501(6)(d)(i) of the Act, that in the event the person were allowed to enter or remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.

22. Before 2014, the relevant section of the Act referred to “a significant risk” but the qualifier “significant” was removed by the Parliament by Schedule 1, item 11 of the Migration Amendment (Character and General Cancellation) Act 2014 (Cth).  When that Bill was introduced into the House of Representatives, the Minister tabled an Explanatory Memorandum, which relevantly said:

    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 provide that it amounts to a significant risk.

23. The Tribunal must therefore consider the degree of “risk”, in the context of this provision in the Act.  In assessing the degree of risk, the Tribunal must not only find that a person has engaged in specified conduct in the past, but must also decide that there must be, as the Respondent points out in his Statement of Facts, Issues and Contentions, a risk that the person would engage in the specified conduct in the future.

24. Mr Shangula denies the elements of the offence.  He says that the action was brought to the Court in the context of his marriage breakdown.  In his oral evidence at the hearing he continued to deny the offence.  The Respondent submitted that this continued denial indicates a lack of insight by Mr Shangula into his offending.

25. It is well-established that the Tribunal cannot look behind or impugn a conviction that has been made by a Court of competent jurisdiction, nor the facts found as proven by such a Court, whether in Australia or abroad, and there are several authorities on that point. Relevantly, the Fully Court of the Federal Court held in Minister for Immigration & Multicultural Affairs v “SRT” [1999] FCA 1197, at [40]:

    The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal.

26. The Tribunal formally found that the conviction against the Applicant and the facts as accepted by the Danish Court are proven.

27. However, it is not improper for a person to present matters which may surround the circumstances of a conviction which may provide some added context, provided none of those submissions contradict the findings of the Court (see Re: Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143).

28. The Respondent contended that the Tribunal should be satisfied that there is a risk that Mr Shangula, if allowed to enter Australia, would engage in the conduct described in section 501(6)(d)(i) of the Act.

29. The Respondent helpfully drew the Tribunal’s attention to a decision of the Full Court of the Federal Court of Australia, Minister for Immigration, Local Government and Ethnic Affairs v Batey (1983) 112 ALR 198, which held at [19-22]:

    19. The decisions in Chan and Boughey demonstrate that as a matter of usage the word "real" when used as an adjective to describe a "chance" or "risk" means that the chance of the event happening or the risk becoming a reality is not remote even though the chance or risk is less than 50 percent. "Remote" in this context means something that is extremely unlikely to occur. This is to use the word "real" in the context of a quantitative assessment of the chance or risk. The decisions in Chan and Boughey mean no more than that in the context of the enactments there being considered, the chance of the event occurring assessed in a quantitative sense had to be substantial and not remote even though the chance may be less than 50 percent. However, neither the meaning of the word "real" when used to describe a chance or risk nor any requirement of the law, requires that a "real risk" or a "real chance" be assessed solely on a quantitative basis.

    20. The word "real" may be used to describe the qualitative nature of a risk or chance. In this sense it is used to describe something which is not far-fetched or fanciful. Use of the word in its qualitative sense is most clearly seen in the treatment of risk of injury in the law of negligence. Reference to one case will suffice to illustrate the use of the word in a qualitative sense.

    In Wyong Shire Council v. Shirt [1980] HCA 12; (1979-80) 146 CLR 40, Mason J. with whom Stephen and Aickin JJ. agreed, said at 47 - 48 :-

    "A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone [1951] UKHL 2; (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.  The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable.  But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors". 

    (Emphasis added)

    22. As appears from the observations of Mason J. in Wyong Shire Council v. Shirt, there is no inconsistency in finding that a risk is real, in the sense that it is not far-fetched or fanciful, yet the degree of probability of its occurrence is quantitatively low. Such a course is rationally open provided that the word "real" is used in a qualitative and not a quantitative sense to describe the risk.

30. The Tribunal considers that a real risk of reoffending is one that is not far-fetched or fanciful and can include a low or minimal risk.  The Tribunal had before it (Exhibit A3) a 24 January 2018 letter from Irene Moen Sondergaard, a Social Worker at the Danish Probation Service of the Kriminalforsogen, or Danish Directorate of Correctional Services.  Ms Sondergaard relevantly wrote:

    Fuad Sliwa Boya Shangula has been attending the meetings with Danish Probation Service since we received his sentence from the Court in Aalborg on the 6 of June 2017.  Fuad has been attending the meetings from the beginning as expected, and he is very positive and cooperate fully about this community supervision.  He appears honest and calm in our meetings.  During the time Fuad has been [in regular] contacts with Probation Service, there has been no problems in our contact/communication and we are considering him as a low-risk client.  His sentence ends on 8 of May 2018.

31. The Court judgment refers to Mr Shangula having no previous convictions, which is also what the Applicant stated in his application for a visa.  The Respondent did not present any information to the Tribunal to contradict that. 

32. Ms Naronha drew the attention of the Tribunal to a letter to the Australian Embassy dated 4 August 2017 (G Documents, p 43) which referred to Mr Shangula as having been evaluated by something described as the “LS/RNR program (Level of Service/Risk Needs Responsivity Program), where he got [a] low score”.  She rightly contended that there was no information before the Tribunal on what metrics were used in this assessment, or how the conclusion was drawn.  However, the Tribunal also notes that the letter goes on to say:

    A low score in LS/RNR means that we evaluate that there [is] a low risk for new crime.

    (Emphasis added.)

    The also states that this is the first occasion on which Mr Shangula has received a sentence and that, provided he complies with the rules of the Probation Service, he was free to travel abroad for holidays between his mandated appointments.

1. The wedding that Mr Shangula had hoped to attend, that of his niece, has been and gone (on 11 January 2018).  Regardless, the Tribunal considers that it is relevant that the main purpose of his desire to visit Australia is to visit his widowed father who is now aged 86 and whose health is not good, and others of his siblings and nieces and nephews who live in this country.  The Tribunal noted that Mr Shangula, as well as two sisters who reside in Denmark, has a brother and two sisters who live in Australia.  He also has several first cousins who live in Australia and has nieces and nephews in both countries.

2. The Tribunal noted Mr Shangula’s evidence that his father did travel to Denmark earlier this year to see his three children who live there, for a period of around a month, before Mr Shangula accompanied his father on a visit to Iraq, also for about a month.  Mr Muneer Shengola showed their father’s passport to the Tribunal which recorded his travel to both countries.

3. In assessing the risk, it is not possible to say that there will be no risk of Mr Shangula reoffending.  The fact that he has been convicted of an offence means that he is in a category of persons who have already shown disregard for the law.  This fact places him logically in a different category of risk from the category of people who have never offended (see the comments of Mathews J, sitting in Her Honour’s capacity as a Deputy President of the Tribunal in Re: Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56, at [51]).

4. However, the circumstances of the offending in this particular matter are important in this assessment of risk.  The circumstances are quite specific, and confined, if the Tribunal can use that expression.

5. The facts found by the Court were that Mr Shangula had kicked his son once and delivered some (but not what number) hits on his young son’s head with an open hand, over a period between 2012 and mid-2016.  Other allegations were found not to be proven.  The Tribunal took into account that the matter was brought to the Danish authorities through statements by Mr Shangula’s former wife and older son, in the context of divorce proceedings she had initiated.  The Tribunal noted that the Court was taking into account recorded evidence from a young boy in order to arrive at its conclusion; evidence which the Court could not, apparently, interrogate and details of which were not before the Tribunal other than the information contained in the translated judgment.

6. While Mr Shangula made statements in evidence about the circumstances of the single kick which he said supposedly occurred at a child care centre and which he denied, the Tribunal did not have this detail before it and reiterates that the conviction as made by the Court cannot be called into question.

7. More importantly, in terms of this review, there is no evidence of any other offending by Mr Shangula in Denmark or Iraq, or anywhere else.  The Tribunal noted that the evidence from Mr Shangula is that he is a trained teacher with a Diploma in Theatre and that he has taught art subjects in the past.  He gave evidence to the hearing that for a time he taught refugee children when he first arrived in Denmark.  I note the evidence that Mr Shangula says he loves being around children and family.

8. The Tribunal notes that Mr Shangula submits, and the Respondent did not contest, that there are no Court orders around contact with his two sons, which is a relevant factor in terms of the Danish justice system’s analysis of risk.  It is also relevant in this consideration that neither of Mr Shangula’s sons proposes to accompany him on his visit to Australia.

9. Section 501 (1) says:

   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.

10. The Courts and this Tribunal have often addressed what is meant by the statutory phrase that a person ‘satisfies’ or ‘does not satisfy’ a requirement.  Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336) is the leading authority, and it has been frequently and contemporarily re-stated by that Court (see Neat Holdings Pty Limited v Karajan Holdings Pty Limited and Ors [1992] HCA 66; (1992) 110 ALR 449 by Toohey J for the Court, at 450). In Briginshaw, Dixon J (as he then was) stated:

    The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes.  Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

11. The Tribunal considers that the degree of satisfaction that the Tribunal must be persuaded of, in considering section 501 of the Act, is a degree of reasonable satisfaction, based on the material. If Mr Shangula satisfies the character test, it is not necessary for the Tribunal to go on to consider in detail each of the relevant considerations in Direction No. 65 made by the Minister. Direction No. 65 provides guidance to decision-makers in the exercise of the discretion, where a person fails the character test, that there may be another reason why a visa should be granted.

12. Direction No. 65 does provide useful guidance to the Tribunal in weighing up risk, notably at paragraph 11.1.2(3)(b)(i), the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence from independent and authoritative sources on the likelihood of the non-citizen re-offending and, at (iii), the duration of the intended stay in Australia.  At paragraph 11.1.2 (4) decision-makers are also to

    consider the risk of harm in the context of the purpose of the intended stay, and the type of the visa being applied for, including whether there are strong or compassionate reasons for granting a short-stay visa.

    (Emphasis added.)

13. After careful consideration of the submissions and the oral evidence, and in particular the independent and authoritative assessments made by the Danish Probation Service, the Tribunal finds that it is reasonably satisfied on the evidence before it that the risk of Mr Shangula engaging in criminal conduct, if he is granted a visa to visit Australia, is in the degree of a negligible, or remote, risk.

14. While the Tribunal frowns on Mr Shangula continuing to dispute the conviction, he properly and honestly disclosed the offence in his on-line visa application and in the personal circumstances form he later submitted to the Department.  Honest disclosure in visa applications is an essential element of Australia’s border entry system.

15. In closing, the Tribunal emphasised three points.  First, the Tribunal’s decision, in the preferable exercise of the discretion available under the Act, is made in terms of a contemporary assessment on the day of its decision, 12 October 2018.  This is now well past the period when Mr Shangula has successfully completed his probation obligations to the Danish Magistrates’ Court.  There is no specific requirement for a non-citizen’s conduct to be ‘tested’ but this consideration, in the Tribunal’s view, properly reflects the exhortation in Direction No. 65 for decision-makers to give weight to time spent in the community since the visa applicant’s most recent offence.  Therefore, the Tribunal does not criticise the delegate of the Minister for making a decision in the terms that the delegate did, when the Applicant was still, at that time, subject to the probation obligations and, in the words of the delegate, his conduct had not been tested in the community sufficiently at the time he applied for the visa.  But, on the later evidence in Exhibit A3 from Ms Sondergaard, Mr Shangula’s obligation has now been discharged.  

16. Had Mr Shangula breached those conditions, the sentence of imprisonment would have been executed, according to the Order of the Court and, if that were the case, it would have been very likely the Tribunal would have come to a different conclusion.

17. Secondly, the fact that Mr Shangula is applying for a short-term visitor visa is directly relevant.  He is not seeking other than to visit his aged father and other close family in Australia (some of whom he has not seen for more than 20 years) for a short period, and then return to Denmark.  The class of visa Mr Shangula has applied for enables the visa-holder to visit Australia for up to three months at a time in a 12 month period.  The Tribunal notes that on the evidence his two sisters did come to Australia for the wedding in January 2018 and returned home to Denmark in accordance with the conditions on their visas.  The Tribunal also notes that, while Mr Shangula told the Tribunal he is currently unemployed, he has a rented residence and other significant ties in Aalborg, most especially his two children.

18. Thirdly, it is the Tribunal’s view that Mr Shangula must provide, to the satisfaction of the Department, evidence that he has sufficient funds to maintain himself for the duration of his visit to Australia (which the Applicant said in his oral evidence would be for around a month) before a visa is issued.  The Tribunal requested that Ms Noronha convey that view to the Department.

19. The Tribunal found that Mr Fuad Shangula satisfies the character test under section 501(6) of the Act. The negligible risk that the Tribunal did find to exist is a degree of risk that does not bar the Tribunal from being reasonably satisfied under section 501(1) of the Act. It therefore follows that the discretion available under 501(1) of the Act is not enlivened.

    DECISION

20. The Tribunal sets aside the decision under review and remits the decision to the Respondent with the finding that the Applicant passes the character test under section 501(1) of the Migration Act 1958.

53.     I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the written reasons for the decision herein of Senior Member D. J. Morris

............................[sgd]............................................

Associate

Dated: 22 October 2018

Date(s) of hearing:	11 and 12 October 2018
Advocate for the Applicant:	Mr Muneer Shengola
Advocate for the Respondent:	Rachel Noronha
Solicitors for the Respondent:	Clayton Utz