Yusuf and Minister for Immigration and Multicultural Affairs - [2000] AATA 792

DECISION AND REASONS FOR DECISION [2000] AATA 792

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1034

GENERAL ADMINISTRATIVE DIVISION       )
           Re      SHARAF-DEEN AREMU YUSUF
  Applicant
           And    MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President

Date11 August 2000
PlaceSydney

Decision      The decision under review is set aside and the matter is remitted to the Minister with a direction that while Mr Yusuf fails to meet the character test the discretion contained in s501(1) should be exercised in his favour not to cancel his subclass 560 (student) visa.
  ..      (Sgd Dr D Chappell)
  ……………………..................
  Deputy President
CATCHWORDS
IMMIGRATION AND CITIZENSHIP: subclass 560 student visa – expedited hearing – citizen of Nigeria – student at Wollongong University – convicted of assault and assault with an act of indecency – conviction on appeal – charged with assault occasioning actual bodily harm – charged with common assault – matters pending hearing – consideration of past and present general conduct – enduring moral qualities not those of a person of good character – consideration of the discretion – consideration of the protection of the Australian community – consideration of the expectations of the Australian community – expectation that Australian laws will be obeyed – expectation of a fair hearing – expectation that decisions will not be based on unsubstantiated charges - consideration of disruption to family, business and other parts of the Australian community – hardship would be caused to fiance – pending outcome of appeal and of further convictions alternate decision may be reached by the Minister – decision under review is set aside – discretion should be exercised in visa applicant's favour
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238
Minister for Immigration and Ethnic Affairs v Baker 1997 73 FCR 187
Irving v Minister for Immigration, Local Government and Ethnic Affairs 1996 68 FCR 422
Goldie v The Minister for Immigration and Multicultural Affairs 1999 FCA 1277
Minister for Immigration and Multicultural Affairs v SRT 1999 FCA 1197

REASONS FOR DECISION

11 August 2000 Dr D. Chappell, Deputy President

BACKGROUND
Application and Hearing

This is an application by Mr Sharaf-Deen Aremu Yusuf (the applicant), for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the Minister) pursuant to s501 of the Migration Act 1958 (the Act) to cancel his subclass 560 (student) visa. This cancellation was based on a finding that Mr Yusuf was not a person of good character. Section 500(1)(b) of the Act confers jurisdiction on the Tribunal to review this decision.
Ms Jill Robertson, a paralegal member of the Sydney West Immigration Service, represented Mr Yusuf at the hearing. Mr Yusuf gave personal testimony to the Tribunal as did the following witnesses on his behalf:
Ms Alison Luff
Mrs Maria Luff
Mr Antonio Iannella
Mr Ronald Edward Luff
Ms Anastasia Sourlas
Mr Zac Chami, of Clayton Utz solicitors, represented the respondent. No witnesses testified on behalf of the respondent.
The Tribunal had before it documents and supplementary documents filed according to the provisions of s500 of the Act (the G and S documents). The following exhibits were also received into evidence on behalf of the applicant and the respondent:
Exhibit No.     Description    Date
A1      AIS statistics
A2      Statement Mr A.S. Yusuf   18/7/2000
A3      Statement Mr M. Badarne 13/7/2000
A4      Copy of Petition
A5      Statement Ms M. Soulis     20/7/2000
A6      Statement Dr C. Hill 25/7/2000
A7      Statement Ms A. Luff         Undated
A8      Statement Mrs M. Luff       Undated
A9      Statement Mr R. Luff          Undated
A10     Statement Ms K. Luff         13/7/2000
A11     Statement Ms A. Sourlas   13/7/2000
A12     Statement Mr P. Standen   14/7/2000
A13     Statement Mr B. Miller       6/7/2000
A14     Statement Ms B. Lymbery 13/7/2000
A15     Statement Mr A. Iannella   13/7/2000
A16     Statement Ms J. Watson    11/7/2000
A17     Statement Ms K. Wells      20/7/2000
A18     Statement I. Dilsa    Undated
A19     Statement Mr M. Hogbin    Undated
A20     Statement Mr M. Imaduddin         12/7/2000
A21     Statement relating to double jeopardy
A22     Applicant's Statement of Facts and Contentions          Undated
R1      Sentencing remarks 18/5/2000
R2      Sentencing remarks 26/6/2000

Section 500(6H) of the Act provides that:
If:
(a) an application is made to the Tribunal for a review of a decision under s501; and
(b) the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person's case unless the information was set out in a written statement given to the Minister at least 2 business days before the Tribunal holds a hearing (other then a directions hearing) in relation to the decision under review.

The respondent conceded at the commencement of this hearing on 9 August that the requirements of this section had been met in regard to the statements of the witnesses that were called to give oral evidence in support of Mr Yusuf's case. The respondent also conceded that the Statement of Facts and Contentions filed on behalf of Mr Yusuf satisfied the provisions of s500(6H) in regard to his provision of personal testimony to the Tribunal. The transcript will record the nature of this concession (see also exhibit 22).
Circumstances leading to Visa Cancellation
The following general facts, and chronology of events, which led ultimately to the cancellation by the respondent of Mr Yusuf's visa were not in dispute between the parties. Mr Yusuf is a citizen of Nigeria. He was born on 20 November 1975 in Kaduna, Kaduna State in Nigeria (G11; A2). After growing up in that country, and receiving part of his education at the Federal Government College – Okigbe in Imo State in Nigeria Mr Yusuf came to Australia to further his academic studies (G11; A2). He arrived in Australia on 22 July 1998 on a subclass 560 (student) visa (G11). Once in this country Mr Yusuf commenced his studies at the University of Wollongong in the faculty of commerce. His area of study is that of marketing and economics with the aim of obtaining a Batchelor of Commerce Degree.
On 5 February 1999 Mr Yusuf met * at the Collegians Club in Wollongong (G4; R1). It should be noted at this stage that the Tribunal issued an order pursuant to s35(2) of the Administrative Appeals Tribunal Act 1975 prohibiting publication of Ms * name. Following this meeting an incident occurred which resulted in charges of common assault and assault with an act of indecency being laid against Mr Yusuf on 16 June 1999 (G1; R1). The circumstances which led to these charges will be described in more detail shortly.
On 12 March 2000 Mr Yusuf was further charged with assault occasioning actual bodily harm and common assault as a result of a further incident which took place on 11 March 2000 (S1-S3). More will also be said about the circumstance surrounding these charges but it should be noted that the Tribunal declined to accept into evidence certain additional statements made by various witnesses in regard to these alleged offences. The transcript will show the reasons given for this ruling.
On 26 June 2000 Mr Yusuf was convicted at Wollongong Local Court of the offence of assault with an act of indecency. He was sentenced to perform 300 hours of community service (G2). On the same date Mr Yusuf was served with a notice of intention to cancel his student visa under s501(2) of the Act (G4-G7). Also on this date Mr Yusuf was interviewed by officials of the Department of Immigration and Multicultural Affairs (DIMA) (G3). On 27 June 2000 Mr Yusuf was notified of the cancellation of his visa (G8). A decision record of the cancellation of the visa (G5) was made by the Minister's delegate. This assessment noted the following factors in regard to the decision to cancel Mr Yusuf's visa, on the basis that he was not a person of good character, having regard to his past and present criminal or general conduct:
On 5 February 1999 Mr Yusuf committed a criminal act against his victim after a night out with the victim at the Collegians Rugby League Club. According to the Police records, Mr Yusuf forcefully attempted to have sex with the victim without her consent. On 16 June 1999 the Wollongong Police charged Mr Yusuf with assault with act of indecency. On 18 May 2000 the Wollongong Local Court convicted Mr Yusuf as a result of criminal charges laid against him by the Wollongong Police. Mr Yusuf was subsequently sentenced on 26 June 2000 to undertake 300 hours of community service. During the sentencing hearing, the Magistrate made comments in relation to the financial hardship caused to Mr Yusuf because he has been unable to work since the Police confiscated his passport. The Magistrate also referred to the stress imposed to Mr Yusuf as a result of the matter before the court. However, his Worship made it clear that none of these matters diminishes the severity and the nature of the offence.
On the basis of the above I reasonably suspect that Mr Yusuf does not pass the character test.
On 26 June 2000 Mr Yusuf was given the opportunity to comment on the possible cancellation of his visa. Mr Yusuf claimed that he did not wish to comment on any matters in the Minister's Direction under section 499. However, he said that his visa should not be cancelled because his parents and his family in Nigeria has [sic] placed high expectations on him. He is expected to lead his family. He further said that his main focus at the moment is to complete his studies.
Mr Yusuf has committed a serious criminal offence. The crime was committed in February 1999 and there is no evidence before me of rehabilitation and recent good conduct. In mitigation of the offence Mr Yusuf maintained that he did not commit the offence.
Taking into account Mr Yusuf's past and present conduct particularly the severity of the crime that has [sic] committed during his presence in Australia, I am of the opinion the [sic] Mr Yusuf is not of a good character on account of his present criminal conduct. Mr Yusuf did not show anything to suggest that he is remorseful. He repeatedly questioned the rights of the departmental officers to question him about his visa.
Mr Yusuf has failed to satisfy me that he does pass the character test.
(G: 12)
The Minister's delegate also declined to exercise his discretion not to cancel the visa. In doing so the delegate noted that he took the following factors into account:
Protection of the Australian Community
The government seeks to take reasonable steps to protect the safety of the Australian community from the actions of criminals and to take actions to minimise the risk of crime and disorder within the Australian community.
The nature of the offence that Mr Yusuf committed, is one that the government considers as being very serious. Direction No 17 – Visa Refusal and Cancellation under Section 501, states that "sexual assaults are particularly repugnant to the Australian community".
I found that Mr Yusuf's criminal conduct is inconsistent with the government and the Australian community expectations and that Mr Yusuf has breached this trust. It is in the best interest of the Australian community that Mr Yusuf as a non-citizen be removed from Australia as soon as possible.
Although I am unable to form a view about the likelihood that the conduct may be repeated, I am of the opinion that cancellation of Mr Yusuf's visa would send an effective message that discourages similar conduct among other non-citizens in Australia.
Expectations of the Australian community
Given the repugnant nature of the offence committed by Mr Yusuf, I am of the opinion that the Australian community would expect Mr Yusuf's visa to be cancelled. Mr Yusuf's comments in mitigation do not convince me that the community would expect otherwise.
The best interests of the child
This factor is not applicable, as Mr Yusuf does not have any children.
Other considerations
Mr Yusuf's only ties to the Australian community are friends. His stay in Australia was of a temporary nature, as he came to Australia on a student visa, and there are no compassionated circumstances that apply in this case.
Exercise of discretion
I do not elect to exercise my discretion. Accordingly, Mr Yusuf's visa is cancelled under Section 501 of the Migration Act.
(G: 13)
On 4 July 2000 Mr Yusuf applied for a review by the Tribunal of this decision to cancel his visa. On 18 July 2000 Mr Yusuf also appealed his conviction of assault with act of indecency to the New South Wales District Court in its criminal jurisdiction (S5). That appeal has not as yet been determined by the District Court. Further, the additional charges mentioned earlier have also not at this stage been considered by any court. At the present time Mr Yusuf is being held in Immigration detention – he was placed in such detention on 26 June 2000.
LEGISLATIVE AND POLICY PROVISIONS
The relevant legislation includes ss499, 500 and 501 of the Act. Section 501, where relevant provides that::
501(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that that person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test. …
501(6) For the purposes of this section, a person does not pass the character test if:
…
(c)having regard to either or both of the following:
(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; …
Otherwise the person passes the character test.
It was accepted that the issue which the Tribunal must determine is whether Mr Yusuf does not satisfy the character test for the purpose of s501(6)(c) of the Act. If the Tribunal is satisfied that Mr Yusuf does not satisfy this test then it may nevertheless exercise the discretion under s501(1) of the Act not to cancel his visa.
Section 499 of the Act empowers the Minister to give Policy Directions which are binding upon the Tribunal: see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) FCA 1238. Such a Direction was given by the Minister under s499 of the Act on 16 June 1999 titled "Visa Refusal and Cancellation Under Section 501 – No17" (the Policy Direction). Reference will be made later in this decision to those provisions of the Policy Direction which are relevant to the Tribunal's consideration of the present matter. But first the Tribunal turns its attention to the evidence presented concerning Mr Yusuf and the application of the character test under s501 of the Act.
EVIDENCE
Past and Present Criminal and/or General Conduct
It was the general contention of the respondent that Mr Yusuf did not pass the character test on the basis of his past and present criminal and/or general conduct under s501(6)(c) of the Act. Paragraph 1.7 of the Policy Direction provides that decision makers considering whether or not a person passes the character test under this particular provision of the Act "must take into account all the relevant circumstances of a particular case, including evidence of rehabilitation and recent good conduct". The Policy Direction goes on to state the following in relation to the factors which should be taken into consideration under the particular provisions of s501(6)(c)(i) and (ii):
1.8 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(i), decision-makers should take into consideration the following:
(a) the nature, severity and frequency of the offence/s;
(b) how long ago the offence/s were committed;
(c) the non-citizen's record since the offence/s were committed, including:
any evidence of recidivism or continuing association with criminals;
a pattern of similar offences; and/or
pattern of discontinued or blatant disregard/contempt for the law and
(d) any mitigating circumstances such as may be evident from judges' comments, parole reports and similar documents.
…
1.9 In considering whether a non-citizen is not of good character against subparagraph 501(6)(c)(ii), decision-makers should consider the following matters (where they are relevant to the facts of the particular case), and where they are relevant, would, in the absence of any countervailing factors, constitute a failure to pass the Character Test:
(a)whether the non-citizen has been involved in activities indicating contempt, or disregard, for the law or for human rights. This could include, but need not be limited to:

engaging in business activities which fall short of criminal fraud requiring proof beyond reasonable doubt, but which, on a more likely than not basis, are disreputable and reflect poorly on a non-citizen's moral qualities;
continual evasion or non-payment of debt;
continual disregard as to payments of family maintenance;
involvement in activities such as organised crime, terrorism, drug related activities, political extremism, extortion, 'white collar' crime, fraud, breaches of immigration law; or
involvement in war crimes or crimes against humanity.
(b)whether the non-citizen has, in connection with any application for the grant of a visa or any kind of Government benefit, provided a bogus document or made a false or misleading statement;
(c)whether the non-citizen has ever made a false or misleading declaration on an approved form, as defined in subsection 5(1) of the Act, about the non-citizen's character or conduct or both;
(d)whether the non-citizen has been removed/deported from Australia or removed/deported from another country; or
(e) whether the non-citizen has been dishonourably discharged from the armed forces of any country or discharged prematurely as the result of disciplinary action in circumstances, or because of conduct, which would be regarded as serious in Australia.

Paragraph 1.9 of the Policy Direction goes on to give examples of the types of behaviour which would show such a contempt or disregard for the law or for human rights. In addition paragraph 1.10 has the following to say about the way in which decision makers should consider any pending charges brought against a non-citizen:
In addition to the above matters, a non-citizen is, in the absence of any countervailing factors, not of good character under the general conduct provisions if the conduct of the non-citizen has:
1.10(a) resulted in offences that are the subject of charges but are not resolved pending a hearing or trial. Matters to be considered when deciding the weight to be given to unresolved charges could include, (but are not limited to):
Whether there is a pattern of conduct relating to the applicant (eg similar sharges in the past, other criminal behaviour); and/or
The seriousness of the offence with which the applicant has been charged;
Finally the Policy Direction notes that the Tribunal should also take account of any recent good conduct under the provision of the general review of the non-citizen's behaviour (paragraph 1.11 of the Policy Direction).
Criminal Conviction
Mention has already been made of Mr Yusuf's conviction on a charge of one count of assault with act of indecency. That conviction occurred on 18 May 2000 at the Wollongong Local Court. The Tribunal had before it a transcript of Magistrate Brydon's findings made at the time this conviction (R1) as well as his sentencing comments made on 26 June 2000 (R2). The transcript shows that the Magistrate considered in substantial detail the allegations made against Mr Yusuf. There is no point in setting out here the nature of these allegations which were found by the Magistrate to be proven, according to the burden of proof applying in criminal matters, beyond reasonable doubt. Mr Yusuf was represented by a lawyer at the court hearing. The Magistrate noted that it was clear "from the defendant's evidence and his extensive record of interview that he strongly denied the offence" (R1: 3).

Having regard to all of the evidence that was before the court the Magistrate ruled that he was satisfied:
beyond reasonable doubt that Miss [*] had her clothes removed by the defendant and he touched as she has described. I am satisfied that her attempts to notify any persons of the assault were also effectively stifled by the offender until such time as she was able to break free from that unit.
At the subsequent sentencing of Mr Yusuf the Magistrate had the following to say about the applicant's attitude towards the offence and the victim:
It should be said that in relation to this matter, there was no contrition shown towards the victim in the matter or to the Court and this matter proceeded over a lengthy period where the victim was required, together with other witnesses – thereafter as I say, the victim was required to give evidence and was cross-examined in relation tot the circumstances alleged as part of her and the prosecution's case.
It's fair to say that the victim was significantly shaken by the experience of that particular evening, demonstrated by the evidence both that she gave and also the responses of the persons to whom she complained. It was also said that she felt violated by virtue of the defendant's behaviour.
(R2: 2)
The Magistrate then went on to describe Mr Yusuf's antecedents. He noted that he had no prior convictions. He also said that a not guilty plea had been maintained and was still maintained at the time of the pre-sentence report (see S4). Magistrate Brydon then said:
Subjectively, the defendant has been engaged in a course of study for some time and has some academic achievements and certainly has demonstrated a serious nature since arriving in Australia. It's fair also to say that the defendant comes from a difficulty background, which is set out in the pre-sentence report and there is no doubt that these proceedings have had a significant impact on him in terms of his study, which is also reflected in the matters in the pre-sentence report. And also, as I say, through no fault of any party, this matter has been ongoing for a considerable period of time, which I would accept the submission from Mr Gallagher that significant stress has been placed on the defendant and also that he has suffered a financial loss as a result of his passport being taken away.
None of those matters in any way, in my view, diminishes the victim's concerns and the violation that the victim suffered on the evening in question and which I found is a matter of fact.
I've taken all those matters into account and looked at the nature of the offence, the subjective features of the defendant and have decided under the circumstances, particularly having regard to the fact that if anything comes before the Court with no prior convictions, to deal with the matter by way of a Community Service Order.
I PROPOSE TO ORDER THAT THE DEFENDANT UNDERTAKE TO PERFORM 300 HOURS COMMUNITY SERVICE IN RELATION TO THIS MATTER. HE IS REQUIRED TO REPORT TO THE PROBATION AND PAROLE SERVICE WITHIN SEVEN DAYS OF TODAY FOR THE PURPOSES OF THE COMMENCEMENT OF THAT ORDER.
(R2: 2)
In his personal testimony to the Tribunal Mr Yusuf continued to maintain that he was innocent of the offence of which he had been convicted and indicated that he had appealed the conviction to the District Court. Mr Yusuf also declined, as was his right, to answer any questions put to him by Mr Chami, on behalf of the respondent, during his cross-examination of Mr Yusuf. Mr Yusuf did say that he wished to apologise to Ms * for any distress that he had caused her. He agreed that he had not expressed such regret through his lawyer at the time of the proceedings before the Local Court in Wollongong.
Pending Criminal Charges
As is apparent from the passages already quoted from the Policy Direction (paragraphs 1.9 and 1.10) in addition to criminal offences of which a person may have been convicted decision makers "should consider" as part of a consideration of general conduct "offences that are the subject of charges but are not resolved pending a hearing or trial". Unresolved charges exist in the present proceedings as has been stated. In the course of his personal testimony Mr Yusuf, as was his right, declined to answer any questions put to him by Mr Chami about these unresolved criminal matters. The Tribunal also refused to accept into evidence a number of witness statements tendered on behalf of the respondent relating to the allegations surrounding these charges.
The Tribunal stated that it would be lacking in procedural fairness and highly prejudicial to the applicant to admit these statements when the allegations remained unproven and a criminal proceeding was still to be conducted in regard to them. In submissions made by Ms Robertson, on behalf of the applicant, it was contended that paragraph 1.10 was in fact ultra vires the Act, and the power given to the Minister under s499 of the Act was on the basis that only general conduct which had resulted in a criminal conviction could be properly considered by decision makers. This contention was and is rejected by the Tribunal but in doing so it must be indicated that extreme caution should be exercised by a decision maker who seeks to apply this particular provision of the Policy Direction lest it leads the Tribunal to an intrusion into issues which can only be dealt with properly before a judicial body which has the mandate and power to determine the guilt or innocence of a person charged with a criminal offence. Thus in the present case, beyond noting that the offences of which Mr Yusuf stands charged – assault occasioning actual bodily harm and common assault – are both examples of offences which are considered by the government to be very serious within paragraph 2.6(n) of the Policy Direction, the Tribunal places no weight upon them in assessing the nature of Mr Yusuf's general conduct. More will be said about this issue below.
General Conduct
A number of witnesses gave personal testimony in support of Mr Yusuf including his fiance, Ms Alison Luff, and Ms Luff's parents, Mrs Maria Luff and Mr Ron Luff (see A7, 8 and 9). Ms Luff said that she had first met Mr Yusuf on 12 August 1999 at a nightclub frequented by university students. They had entered rapidly into a close relationship, and it was their intention to marry at the end of the year when Ms Luff expected to complete her university studies. Ms Luff said that she had taken Mr Yusuf to meet her parents about two months after their initial meeting. They had got to know him well and had accepted him even though there were acknowledged cultural differences in their respective backgrounds. In her written statement Ms Luff said that she found Mr Yusuf to be "an affectionate, caring human being who has positively changed my life". She viewed him as in no way a danger to the Australian community and that his "motivation, intelligence and remarkable personality can only be described as an asset in a country where such qualities are often lacking in many citizens" (A7).
Ms Luff also said, when questioned by Mr Chami about her knowledge of the circumstances surrounding the offence of which Mr Yusuf had been convicted, that her first knowledge of these circumstances was obtained after the conviction on 26 June 2000 and following Mr Yusuf's detention by immigration officials. Ms Luff said that Mr Yusuf had also made her aware of the further offences of which he had been charged in March of this year.
Ms Luff's parents both said that they too viewed Mr Yusuf in a very favourable way following the development of his relationship with their daughter. Mr Yusuf had visited their home on many occasions and they had found him to "be polite, courteous, respectful and charming" (A8; A9). They indicated that they had been shocked by Mr Yusuf's conviction and detention but this had not changed their attitudes towards him.
APPLICATION OF THE CHARACTER TEST
Submissions, Policy and Case Law
The meaning of the term "good character" as used in s501 of the Act is well understood as a result of several persuasive and, for the Tribunal, binding decisions of the Full Federal Court (see Minister for Immigration and Ethnic Affairs v Baker 1997 73 FCR 187 (hereinafter Baker); Irving v Minister for Immigration, Local Government and Ethnic Affairs 1996 68 FCR 422 (hereinafter Irving). Justice Lee gave the following description of the term "good character" in Irving:
Unless the terms of the Act and Regulations require some other meaning 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. The former is an objective assessment apt to be provided as a fact whilst the latter is a review of subjective public opinion. See Clearihan v Registrar of Motor Vehicle (ACT) (1994) 117 FLR 455 per Miles CJ at 459-460; Plato Films Ltd v Speidel [1961] AC 1009 at 1128-1129 per Lord Radcliffe, Lord Denning at 1138. A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character, see Re Davis (1947) 75 CLR 409 at 416, per Latham CJ at 416; Clearihan at 461, per Miles CJ. Conversely, a person of good repute may be shown by objective assessment to be a person of bad character.
(at 431-432)

This statement by Lee J was approved by the Full Federal Court in Baker and more recently by the Full Federal Court in Goldie v The Minister for Immigration and Multicultural Affairs 199 FCA 1277. In the latter decision, in a joint judgment Spender, Drummond and Mansfield JJ said:

The concept of 'good character' in s501 is not concerned with whether an applicant for entry meets the highest standards of integrity, but with a less exacting standard than that. It is concerned with whether the applicant for entry's character in the sense of his or her enduring moral qualities, is so deficient as to show it is for the public good to refuse entry.
(at paragraph 8)

Having regard to these various legal authorities, and in particular to the decision of Goldie, Mr Chami contended, in submissions made on behalf of the respondent, that Mr Yusuf was a person who was not of good character based upon the conviction entered against him, his lack of remorse and his non-acceptance of guilt. In addition, it was contended that the commission of the further offences at a time when Mr Yusuf was then still facing unresolved charges relating to the sexual assault reflected poorly on his character and moral qualities. Mr Yusuf's character was deficient to such a degree that it was in the public good to cancel his visa.
In her short submissions made on behalf of the applicant Ms Robertson said that the evidence showed that Mr Yusuf did meet the character test. It was acknowledged that he had been convicted of an offence which the government viewed as very serious within the framework of paragraph 2.6(d) of the Policy Direction. The other charges laid against Mr Yusuf were disputed. A number of witnesses had given evidence as to his good character notwithstanding their knowledge of his conviction.
Tribunal's Views
With the judicial benchmarks of Irving, Baker and most recently Goldie clearly in mind the Tribunal is more than satisfied on the evidence before it that Mr Yusuf fails to meet the character test as a result of both his criminal and general conduct. In regard to the criminal conviction, despite Mr Yusuf's continuing protestations of innocence, the Tribunal is bound by legal authority to accept Magistrate Brydon's findings as to the circumstances of the commission of that offence. As the Full Federal Court said in the decision of Minister for Immigration and Multicultural Affairs v SRT (1999) FCA 1197, when speaking of an analogous provision of the Act (s200 concerned with deportation):
40 The manner in which the Tribunal satisfies itself is determined by s33 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 their 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. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence. …
41 There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
It is acknowledged that in the present matter Mr Yusuf has appealed his conviction to the New South Wales District Court. Under ideal circumstances it would therefore have been desirable to have postponed the present hearing until the determination of this appeal. However, the Minister elected to proceed with the cancellation of Mr Yusuf's visa immediately upon his conviction by the Local Court and in an expedited way which is permitted under the recently revised procedures set out in s500 of the Act. Under these procedures the Tribunal must reach its own decision about this matter within a very tight schedule which allows for no indefinite adjournments or delays.
Mr Yusuf did not avail himself of the opportunity before the Tribunal to provide any further information or explanation regarding the behaviour which has been judged to justify his conviction of assault with act of indecency. When giving his personal testimony Mr Yusuf displayed a general lack of candour about any of his conduct, other than that associated with his immediate plight and the impact of his visa cancellation upon his university studies. He seemed, in the Tribunal's view, to have gained little insight into the nature of his behaviour towards Ms *, or to express any substantial concern about the impact of that behaviour upon her life and those close to her.
Mr Yusuf's lack of candour seems to have extended to his fiance. It was only after he had been convicted and detained that he seems to have felt obliged to inform her of the assault upon Ms *, although in doing so he appears to have omitted a number of circumstances which are set out in the findings of fact made by the Magistrate. Mr Yusuf also refused to answer questions put to him about the reaction of his father to his conviction and detention on the basis that this was a private matter. This reticence on his part may reflect some cultural differences associated with Mr Yusuf's background and upbringing in Nigeria. However, it is not the type of response which affords to the Tribunal any basis upon which it might mitigate the overall impression gained from his testimony that Mr Yusuf is a somewhat selfish, self-centred individual and one who is lacking in compassion and understanding concerning his highly inappropriate, offensive and criminal behaviour towards Ms *. This impression was not in any way overcome by the evidence provided on Mr Yusuf's behalf by a number of character witnesses. These witnesses, other than his fiance, had little if any knowledge of the circumstances surrounding Mr Yusuf's sexual assault conviction. Overall, Mr Yusuf's enduring moral qualities are not those expected of a person of good character, and as such the Tribunal is satisfied that Mr Yusuf fails to meet the character test.
EXERCISING DISCRETION
Having not been satisfied that Mr Yusuf passes the character test the Tribunal must now determine whether it should still exercise its discretion under s501 of the Act in favour of Mr Yusuf. The Policy Direction refers to a number of factors to which decision makers should have regard when exercising this discretion. These include three primary considerations as well as a number of other considerations. The Policy Direction also states that:
Decision makers should note that no individual considerations can be more important than a primary consideration, but that a primary consideration cannot be conclusive in itself in deciding whether to exercise the discretion to refuse or to cancel a visa. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.
(paragraph 2.2)
The three primary considerations to which the Tribunal must have regard are:
the protection of the Australia community, and members of the community;
the expectations of the Australian community; and
in all cases involving a parental relationship between a child or children and the person under consideration, the best interests of the child or children.
(paragraph 2.3)
In the present case only two of these primary considerations require attention. In regard to the first, the protection of the Australian community, the Policy Direction notes the following:
2.4The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community. The Government is especially mindful to take reasonable steps to protect the safety of the more vulnerable members of the community, such as children and young people who are especially at risk. This is of particular importance when the offences in question are in relation to drugs and crimes of violence.
2.5 The factors relevant to an assessment of the level of risk to the community of the entry or continued stay of a non-citizen include:
(a) the seriousness and nature of the conduct;
(b)the likelihood that the conduct may be repeated (including any risk of recidivism); and
(c)whether visa refusal or cancellation may prevent or discourage similar conduct (general deterrence).
(paragraphs 2.4-2.5)

Protection of the Australian Community

The nature of the conduct engaged in by Mr Yusuf has already been referred to. It is clear that this conduct falls within that described as a serious offence in paragraph 2.6 of the Policy Direction. As paragraph 2.6(d) states:
Sexual assaults are particularly repugnant to the Australian community, especially sexual assaults involving children, regardless of whether there was overt violence or the threats of violence.
It was contended by the respondent that Mr Yusuf had committed the sexual assault within a very short period of his arrival in this country and that this was a guide as to his possible re-offending in the future. Mr Yusuf had in fact engaged in further criminal offences at a time when he was already facing the then outstanding sexual assault charge, and this confirmed his total disregard for the law in Australia and the need to protect the Australian community from violent offences which he had shown himself capable of committing. There was also, within the framework of the Policy Direction, a deterrent value in cancelling Mr Yusuf's visa since it might prevent or discourage similar conduct by like-minded persons. The Minister further contended that other short-term or temporary visa holders should be deterred from engaging in conduct of a criminal nature (paragraph 2.1.1 of the Direction).
Ms Robertson disputed these contentions made by the respondent and submitted that with the exception of the one conviction which was under appeal all of the allegations against Mr Yusuf of further offending were still to be tested before a court of law.
Expectations of the Australian Community

Under this heading of the Policy Direction the respondent submitted that the Australian community expected that short-term temporary residents, such as students, should abide by Australian laws and honour the tacit understanding which was reached at the time of the granting of a visa that it was for study purposes in Australia so as to better themselves and their country of origin upon return. That understanding had been broken when Mr Yusuf engaged in the criminal conduct of which he was convicted.
Other Consideratons
Paragraph 2.17 of the Policy Direction refers to a number of other matters which, although not primary considerations, may be relevant to the exercise of the discretion under the Act. The Policy Direction states, in part, that:
2.17 It is the Government's view that where relevant, it is appropriate these matters be taken into account but that they be given less individual weight than that given to the primary considerations. These other considerations may include:
(a)the extent of disruption to the non-citizen's family, business and other ties to the Australian community;
(b)genuine marriage to, or de facto or interdependent relationship with, an Australian citizen, permanent resident or eligible New Zealand citizen:
· in assessing the compassionate claims of the Australian partner (Australian citizen, resident or eligible New Zealand citizen), decision-makers must consider the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen was of character concern at the time of entering into or establishing the relationship.
(c)the degree of hardship which would be caused to immediate family members lawfully resident in Australia (including Australian citizens), including whether the immediate family members are able to travel overseas to visit the non-citizen, the nature of the relationship between the non-citizen and the immediate family members, whether immediate family members are in some way dependant on the non-citizen for support which cannot be provided elsewhere;
(d)family composition of the non-citizen's family, both in Australia and overseas;
(e)the likelihood of the non-citizen seeking to evade any outstanding legal matter or on-going liability;
(f)the likelihood of the non-citizen breaching any conditions attached to the outstanding legal or on-going matter, any cost or bilateral implications of such a breach (eg extradition);
(g)the nature and seriousness of the offence(s) or alleged offence(s) (in the context of seeking to evade an outstanding legal matter);
(h)any evidence of rehabilitation and any recent good conduct;
(i)whether the application is for a temporary visa or permanent visa;
(j)the purpose and intended duration of the entry to or stay in Australia, including any significant compassionate circumstances; and
(k)the fact that a non-citizen has been formally advised in the past by an officer of the Department of Immigration and Multicultural Affairs about conduct which brought him or her within the deportation provisions at section 200/201 of the Act or the visa refusal and cancellation provisions at section 501.
(Policy Direction 2.17)
The Tribunal received evidence from a number of the applicant's witnesses in regard to a number of these additional considerations as well as submissions made about them, principally on behalf of the respondent. In relation to the extent of disruption to Mr Yusuf's "family, business and other parts of the Australian community" (paragraph 2.17(a)). It was clear from the evidence that all of Mr Yusuf's family live in Nigeria and that his ties to this country exist primarily through his relationship with Ms Luff and her family as well as with various friends and acquaintances that he has acquired since commencing his studies at the University of Wollongong. Mention has already been made of the personal and positive testimony provided on Mr Yusuf's behalf by Ms Luff and her parents. In addition a number of other witnesses who knew Mr Yusuf testified on his behalf and indicated that they valued his friendship and felt that he should be allowed to remain in this country in order to complete his university studies.
In regard to Mr Yusuf's relationship with Ms Luff (paragraph 2.17(b)) it is clear from both the passage quoted earlier in the delegate's decision at the time of the initial cancellation of Mr Yusuf's visa, as well as in the respondent's Statement of Facts and Contentions, that the existence of this relationship was not brought to the attention of the respondent's officials prior to the hearing. The Tribunal had the benefit of hearing in person the evidence provided on Mr Yusuf's behalf by his fiance and her parents. The Tribunal found each of them to be credible witnesses and it has no doubt that there does exist and genuine and caring relationship between Ms Luff and Mr Yusuf which has been maintained despite the revelations about sexual assault and the existence of further criminal charges. Ms Luff described the plans that she had to marry Mr Yusuf and she indicated that she would still go to Nigeria to live with him even if his visa were to be cancelled. She said, however, that this would cause her and her family very significant hardship and that she would wish at some time in the future to be able to return to Australia with her future husband and children.
There was also evidence before the Tribunal, in the form of a witness statement from a university counsellor at the University of Wollongong, Dr Constance Hill, indicating that as a result of the present proceedings involving her fiance Ms Luff had been under great stress and had difficulty concentrating on her studies. It was also said that this stress would be heightened if Mr Yusuf had his visa revoked and had to return to Nigeria (see A6).
CONCLUSION
The exercise of the discretion by the Tribunal under s501 requires a difficult balancing process. As the Policy Direction indicates the most substantial weight must be given to the two primary considerations – the protection of the Australian community and the expectations of that community. The views of the Tribunal concerning the seriousness of Mr Yusuf's criminal offending have already been expressed. The Australian community also has every right to expect that a non-citizen like Mr Yusuf, who is here on a short-term visa for a specific purpose, should obey Australian laws while in this country. Through his conviction Mr Yusuf has breached the trust given to him by the Australian community and this must weigh heavily against him. However, it must also be an expectation of the Australian community that those who have breached Australian laws, or have been alleged to have committed such a breach, should have a fair hearing and that adverse decisions, including their potential removal from the country, should not be based upon unsustainable or unsubstantiated charges or convictions. It is this aspect of Mr Yusuf's case which gives cause for some concern since there remains both an outstanding appeal against his conviction of assault with an act of indecency and pending court proceedings to determine the outcome of the two assault charges.
When these acknowledged facts are combined with the other considerations which the Tribunal must take account of in this case, namely, those relating in particular to the relationship between Mr Yusuf and Ms Luff and the hardship which would be created for Ms Luff and her family should Mr Yusuf be required to return immediately to Nigeria, the Tribunal believes that this is a case where it should exercise its discretion in favour of Mr Yusuf. In doing so the Tribunal is well aware that there a possibility that in the future Mr Yusuf's appeal against his conviction may be dismissed by the District Court, and he may also be convicted of two further charges arising from the alleged incident in March of this year. In reaching its present decision the Tribunal wishes to restate that it has placed no weight upon these latter allegations and has presumed Mr Yusuf to be innocent of both of these charges. Should Mr Yusuf in fact be convicted of these offences, and his earlier conviction be sustained, this would present a very different situation from the one currently being considered by the Tribunal. It is a situation which might well lead the Minister to proceed to cancel Mr Yusuf's visa on the basis that his established propensity to commit acts of violence justifies his immediate removal from the country.
The decision under review is set aside and the matter is remitted to the Minister with a direction that while Mr Yusuf fails to meet the character test the discretion contained in s501(1) should be exercised in his favour not to cancel his subclass 560 (student) visa.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of Dr D. Chappell, Deputy President
Signed:         .....................................................................................
  Associate
Date/s of Hearing  9, 10 August
Date of Decision  11 August 2000
Solicitor for the Applicant         Ms J Robertson
Solicitor for the Respondent    Mr Z Chami