Zafari and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 337
•1 March 2023
Zafari and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 337 (1 March 2023)
Division:GENERAL DIVISION
File Number: 2021/6283
Re:Sumera Zafari
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member Dr C Huntly
Date:1 March 2023
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated 2 September 2021, to refuse the Applicant’s Partner (Temporary) (Class UF) and Partner (Residence) (Class BC) visa pursuant to 501(1) of the Migration Act 1958 (Cth) is affirmed.
............[Sgd]..........................................
Member Dr C Huntly
Catchwords
MIGRATION – Migration Act s 501(1) – decision of a delegate of the Minister to refuse the Applicant’s partner visa – failed character test – Direction 90 – whether there is “another reason” – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – applicant is a 32-year-old-male citizen of India – fraud – dishonest conduct – there is not “another reason” – reviewable decision affirmed
Legislation
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(b), 501, 501(1), 501(2), 501(6), 501(6)(a), 501(6)(c), 501(6)(d), 501(6)(d)(i), 501(7), 501(7)(c), 501CA, 501CA(4)
Cases
Bread Manufacturers of NSW v Evans [1981] HCA 69
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185
Garland and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2022
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
James and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 2390
KLLV and Minister for Immigration and Border Protection [2016] AATA 896
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033
Minister for Immigration & Multicultural & Indigenous Affairs v Godley [2005] FCAFC 10; and Godley v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 83 ALD 411
NDBR v Minister for Home Affairs [2019] FCA 1631
Nigro v Secretary to the Department of Justice [2013] VSCA 213
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Re Zaya and Minister for Immigration and Border Protection [2017] AATA 366
Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 80
Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1046
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 440
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
REASONS FOR DECISION
Member Dr C Huntly
1 March 2023
the application
The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 2 September 2021[1] to refuse to grant a Partner (Temporary) (Class UF) and Partner (Residence) (Class BC) visa (the Partner visa) to her husband (the Refusal Decision) pursuant to s 501(1) of the Migration Act 1958 (Cth) (the Act) on character grounds.
[1] Exhibit R1, 652-653.
The Applicant, Ms Zafari, is a 31-year-old Australian citizen (referred to here as the Visa Applicant). She is married to a citizen of India who has applied for a Partner Visa (referred to here as the Applicant). The Visa Applicant was the sponsor in the relevant visa application.[2] The Applicant is currently offshore.
[2] Ibid 11-33.
This application is made pursuant to s 500(1)(b) of the Act which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister made under s 501(1) of the Act.
Unless the context indicates otherwise, passages quoted in bold font and underlined have been emphasised by the Tribunal.
the issue(S) for determination
The issues for determination are:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and, if not
(b)whether there is “another reason” why the decision to cancel the visa should be revoked.
background
History of offending
The Applicant is a 32-year-old Indian citizen. He first arrived in Australia on 21 October 2008, as the holder of a Student (Class TU) (Subclass 573) visa.[3]
[3] Ibid 769; Exhibit A2, 1.
The Applicant’s offending dates back to 2011. His first driving offence was recorded in May 2011 for “unauthorised driving by learner driver”. He was found to be driving unsupervised and without displaying ‘L’ plates.[4] In March 2012, the Applicant was convicted of “driver failed to ensure that a passenger under 16 restrained”. He was stopped by police in relation to another matter and a 4-year-old female was observed in the left rear passenger seat wearing an adult seat belt and without a booster seat.[5]
[4] Exhibit R3, 49; 53.
[5] Ibid 54.
In August 2012, the Applicant was convicted of “drive vehicle without lights illuminated”.[6] In October 2013, the Applicant was convicted of “exceed speed limit in a speed zone”, he was driving 17 kilometres per hour over the speed limit.[7]
[6] Ibid 49.
[7] Ibid 41; 48.
In September 2012, the Applicant was convicted of “stealing as a servant” and two counts of “cause a detriment to a person by fraud”.[8] The offences were committed between 15November 2011 and 15 December 2011. The details of the offences are summarised in Exhibit R2 as follows:[9]
[8] Ibid 48.
[9] Exhibit R2, 2-3.
a.Between 15 November to 1 December 2011, the applicant:
i.On 11 occasions used a stolen ANZ credit card to perform a manual fuel correction to the value of fuel legitimately purchased by a customer and then refunded the same amount to his own bank card. He refunded a total of $1,004.84 into his bank account as a result of those transactions.
ii.On 8 occasions the applicant used the stolen ANZ credit card to make direct purchases and transfer funds onto gift cards in the sum of $1,113,16.
b.Between 12 December to 15 December 2011, the applicant:
i.On 7 occasions used a stolen Citibank credit card to perform a manual fuel correction to the value of fuel legitimately purchased by a customer and then refunded the same amount to his own bank card. He refunded a total of $1,539.99 into his bank account as a result of those transactions.
ii.On 3 occasions the applicant used the stolen Citibank credit card to make direct purchases and transfer funds onto gift cards in the sum of $602.79.
c.Between 15 November to 15 December 2011 the applicant refunded a total of $2,254.84 directly onto his bankcards.
(References removed.)
In October 2013, the Applicant was convicted on two counts of “wilfully mislead a person affecting the discharge of the person’s duty under this Act”.[10] The Applicant on two separate occasions, on receiving the infringement notice in relation to speeding, nominated his mother as the driver of the vehicle. The Applicant’s mother was not in Australia at the time of the offences.
[10] Exhibit R3, 48; 61.
In February 2014, the Applicant was convicted for “no authority to drive – never held and disqualified”.[11] The Applicant was disqualified for nine months.
[11] Ibid 45; 48; 63.
The Applicant married the Visa Applicant on 10 December 2015.[12]
[12] Exhibit R1, 41.
The Applicant departed Australia on 17 January 2016.[13]
[13] Exhibit R1, 768.
On 3 October 2016, the Applicant lodged an application for a combined Partner (Temporary) (Class UF) and Partner (Residence) (Class BC) visa.[14]
[14] Ibid 11-33.
The Applicant returned to Australia on 14 January 2017, and again on 11 May 2017, as the holder of a Visitor (Subclass 600) visa (Visitor Visa).[15]
[15] Exhibit R2, 4; The Visitor Visas were granted on 12 January 2017 and 21 April 2017 respectively.
On 6 June 2017, while in possession of a Visitor Visa, the Applicant committed the traffic offence “drive motor vehicle using handheld mobile”.[16]
[16] Exhibit R3, 66.
The Applicant departed Australia on 5 October 2017.[17]
[17] Exhibit R1, 768.
On 12 August 2020, the Department issued the Applicant with a notice of intention to consider refusal of the Partner Visa under s 501(1) of the Act.[18] The Applicant’s attention was directed to the limb of the character test in s 501(6)(d)(i) of the Act, which applies where there is a risk that the person would engage in criminal conduct in Australia.
[18] Ibid 770-773.
On 31 August 2021, a delegate of the Minister refused to grant the Applicant the Partner visa, pursuant to s 501(1) of the Act.[19]
[19] Ibid, 652.
On 6 September 2021, the Applicant applied to the Tribunal for review of the Refusal Decision.[20]
[20] Ibid, 654-663.
the hearing and the evidence
The Visa Applicant appeared before the Tribunal in person and the Applicant appeared before the Tribunal via MS Teams; firstly on 1 March 2022, and finally on 16 June 2022.
The Applicant and the Visa Applicant were represented by Ms A Graziotti of Estrin Saul Lawyers. The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers, who appeared in person.
The following witnesses gave evidence at the hearing:
(a)the Applicant;
(b)the Visa Applicant;
(c)Mr Damien Meenan; and
(d)Dr Phil Watts.
The Tribunal had the following materials before it:
(a)The Applicant's bundle of evidence, dated 25 November 2021 (Exhibit A1);
(b)The Applicant's Statements of Facts, Issues & Contentions (SOFIC), filed 25 November 2021 (Exhibit A2);
(c)Report of Dr Phil Watts, dated 13 December 2021 (Exhibit A3);
(d)The Applicant's further submissions in reply, filed 20 January 2022 (Exhibit A4);
(e)The Applicant's further statement, filed 20 January 2021 (Exhibit A5);
(f)The Applicant's further submissions, filed 24 February 2022 (Exhibit A6);
(g)The Respondent’s T documents, filed 6 October 2021 (Exhibit R1);
(h)Respondent's Statements of Facts, Issues & Contentions (SOFIC), filed 23 December 2021 (Exhibit R2); and
(i)Summons Bundle, filed 23 December 2021 (Exhibit R3).
legal framework
Section 501(1) of the Act provides that 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” (as defined by s 501(6) of the Act. The character test is, therefore, a statutory standard that is both technically expressed and fact dependent.
Section 501(6) of the Act relevantly provides that:
For the purposes of this section, a person does not pass the character test if:
(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; …
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act provides that, “[a] person or body must comply with a direction under subsection (1).”
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[21] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[22]
[21] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[22] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Direction 90 para 5.1(2) provides that “a non-citizen may be refused a visa if they do not satisfy the decision-maker that they pass the character test”.
Direction 90 para 5.1(4) provides that the “purpose of this Direction is to guide decision-makers in performing functions or exercising powers under s 501…of the Act”.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501 of the Act. These principles are stated to be as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Annex A to Direction 90 deals with the application of the character test. Section 1, “Overview of the character test” provides:
(1)Under section 501 of the Act, a person may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A person may have their visa cancelled if the decision maker reasonably suspects that the person does not pass the character test, and the person does not satisfy the decision-maker that they pass the character test.
(2)Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
(3)Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.
(4)In considering a person with unresolved criminal matters, decision-makers should note:
a) where a person already fails the character test, any other outstanding criminal matters would not generally prevent consideration of their case under section 501;
b) a person who does not already fail the character test, and is the subject of criminal charges in Australia, which have not yet been finalised before the relevant court, would not generally be considered under section 501 until the charges have been finally determined;
c) where a person is in Australia, and they are facing charges in another country, and the charges will not be resolved in absentia, the conduct that is the subject of those charges may be considered in the context of section 501(6)(c)(i) and/or (ii).
(5)If the person does not pass the character test, section 501(1) of the Act enables a visa to be refused and section 50 I(2) of the Act enables a visa to be cancelled.
Section 2 of Annex A deals with the application of the character test. This relevantly provides:
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.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(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 will engage in criminal conduct in Australia.
(2)The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
The Tribunal is limited to an assessment of whether the Applicant passes the provision of the character test that was considered by the delegate, namely, s 501(6)(d)(i) of the Act.[23]
[23] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033 at [68] per Rares J.
The Tribunal must determine whether there is “a risk” that the Applicant would engage in the conduct referred to in s 501(6)(d)(i) of the Act in the event he is granted a Partner visa in Australia.
Clause 6(2) of Annex A to Direction 90 states that the s 501(6)(d) of the Act will be enlivened if “there is more than a minimal or remote chance" of the conduct in question occurring. This is a demonstrably low threshold.
The Tribunal has held in respect of s 501(6)(d) of the Act that “as long as the risk is real and not fanciful or remote, then the subsection is engaged”.[24] This assessment accords with the relevant contentions of the Applicant.[25]
[24] KLLV and Minister for Immigration and Border Protection [2016] AATA 896 at [51] per Fice SM.
[25] Exhibit A2, [74].
In the present case, the Applicant has committed crimes of dishonesty, and traffic-related offences. These, if repeated, would be relevant to the Tribunal’s application of s 501(6)(d)(i) of the Act.
The Tribunal is not limited to assessing the risk of the Applicant engaging in conduct during the currency of the visa. In fact, “[t]he context and purpose of the Act support a broader construction, that the risk being assessed is the risk of a person engaging in criminal conduct in Australia at any time”.[26]
[26] Anderson J in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1046 at [43].
Counsel for the Applicant contends as follows:[27]
[27] Exhibit A2, 11.
RISK OF REOFFENDING IN AUSTRALIA
82.The risk of the Visa Applicant engaging in further criminal conduct in Australia is so minimal that it can only be considered a trivial risk.
83.The Principal Offences occurred three years after the Visa Applicant first arrived in Australia, when he was a young 20-year old man. His statements before the tribunal demonstrate that he was genuinely remorseful immediately following the commission of the Principal Offence and confessed to his manager before any of his conduct came to light. This depicts a young man who made a stupid mistake, subsequently realised the seriousness of what he had done and sought to rectify his actions.
84.The Principal Offences occurred more than ten years ago. The Applicant has spent years in the Australian community since they were committed. He has no outstanding fines.
85.The Visa Applicant pleaded guilty and was cooperative with police. He has consistently expressed shame to the Department and Tribunal. He maintained employment in Australia from 2009 until his departure in January 2016 and never committed a similar offence despite having ample opportunities in his various roles. He has also maintained employment in India and likewise has never reoffended.
86.The Applicant holds a full Australian driver’s licence and drove vehicles during his seven month stay in Australia in 2017. He holds a driver’s licence in India for automatic vehicles.
87.There is no basis on which the Tribunal could make a finding that the Visa Applicant fails the character test as set out in any of the subsections of section 501(6).
88.The Visa Applicant does not fail the character test in accordance with section 501(6)(d)(i) or any other subsection of section 501(6) of the Act.
Relevantly, Counsel for the Respondent made the following contentions:[28]
[28] Exhibit R2, 7-8.
28. The clear legislative intention is that the threshold is whether there is ‘a’ risk. The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk. The Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
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.
29. For example, a “low” risk of reoffending remains “a risk” and is sufficient to engage s 501(6)(d)(i): see the recent decision of the Tribunal in Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 80 at [104]-[106] and [123] (and the authorities cited therein).
30. The evidence before the Tribunal compels a finding that there is at the very least a risk that the applicant will commit further offences. That conclusion flows from these aspects of the evidence:
a. The applicant’s offences were not isolated incidents. Rather, there was a pattern of offending. The applicant has committed numerous driving offences in Australia including whilst most recently the holder of a Visitor (Subclass 600) visa. He wilfully misled the Department of Transport on two separate occasions and the additional offenses of stealing as a servant and cause a detriment to a person by fraud were serious, organised and calculating offences that were sustained over a period of time and spanned two workplaces.
b. He has variously attributed the stealing as a servant and cause a detriment to a person by fraud offences to “a mistake” or “curiosity” rather than any need or greed. It was that “inexplicable” nature of the offending that troubled the sentencing magistrate who commented “the writer of the pre-sentence report comes to the conclusion that you pose a low risk of re-offending. I’m not sure how that assessment was done because, without fully understanding why you committed the offences, I don’t know that I can be all that confident that it won’t happen again…Whether this bad mindset will reassert itself in the future, well, I don’t know. What brought it about, I don’t know.”.
c. Whilst the applicant suggests that he is remorseful and raised the stealing as a servant and cause a detriment to a person by fraud offences with his superiors, that assertion is not born out in the records. The sentencing remarks state that the applicant admitted to the offending when he was confronted by it and that is consistent with the information in the mediation report. The applicant’s stated remorse is further put into question in light of his statement that “had the service station manager checked the first transaction he made at the time, he could have fired [him] and the other offences would not have been committed”.
d. There is no expert evidence before the Tribunal adequately addressing the key factors that caused or contributed to the applicant’s offending conduct and confirming that the applicant has been successfully rehabilitated.
(Reference removed; original emphasis.)
In rejoinder, Counsel for the Applicant submitted that:[29]
[29] Exhibit A4, 1.
THE CHARACTER TEST
1. The Respondent’s statement of facts, issues and contentions provided to the Tribunal on 23 December 2021 (RSFIC) refers to the decision of Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 80, in which the Tribunal states that a “low” risk of reoffending remains “a risk” and is sufficient to engage section 501(6)(d)(i) of the Act.
2. The Visa Applicant was assessed by clinical psychologist Dr Phil Watts on 10 December 2021. Mr Watts [sic] subsequently provided a report dated 13 December 2021 (Report), in which he stated:
a.Paragraph 37: “I would conclude that [the Applicant]’s risk of reoffending is quite low, especially given the 10-year period since the offences.”
b.Paragraph 42: “In terms of [the Applicant] engaging in serious offences such as Stealing as a Servant, my opinion is that he would be of low risk, especially given the 10 year period since that time.”
3.In light of Dr Watts’ assessment, the Visa Applicant does not push the contention that the risk of reoffending is so minimal that it can only be considered a trivial risk. The Visa Applicant accepts that there is evidence that he poses a “low” risk of reoffending and therefore that it is open to the Tribunal to find that he fails the character test as set out in section 501(6)(d)(i) of the Act.
4.However, he contends that this risk is so low as to not be unacceptable and weighs only slightly in favour of refusing his visa.
(Original emphasis.)
It will be appreciated that, for the purposes of the Character Test at s 501(6)(d)(i) of the Act, discerning what the precise submissions are on behalf of the Applicant relating to his risk of reoffending is not straightforward. However, for the avoidance of doubt, the Tribunal accepts the finding of the Applicant’s own expert witness that the Applicant presents a low risk of reoffending. For the purposes of s 501(6)(d)(i) of the Act, the Tribunal finds that this risk exceeds the relevant threshold, which has been accepted by the Tribunal on previous occasions in like matters, to equate to a risk of reoffending greater than that which is “trivial” or “fanciful”.
Accordingly, I find that the Applicant fails the statutory Character Test for the purposes of s 501(6)(d)(i) of the Act, as this applies to present review.
CONSIDERATION
Does the Applicant pass the character test?
As the Applicant does not pass the character test as expressed at s 501(6)(d)(i) of the Act, the discretion to refuse the visa is enlivened. Where the discretion is enlivened, the question before the Tribunal becomes whether to affirm or remit the original decision to refuse the visa for “another” reason as provided at Direction 90.
Is there another reason why the original decision should be revoked?
Primary Considerations
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1 of Direction 90)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(Emphasis added.)
The Applicant’s Offending
In tabular form, the Visa Applicant’s history of offending is as follows:
Date
Offence
Date of Verdict
Fine ($)
23-Apr-11
Unauthorised driving by learner driver
31-May-11
100
21-Dec-11
Driver failed to ensure that a passenger under 16 restrained (4 yo)
21-Mar-12
250
5-Apr-12
Drive without lights illuminated
16-Aug-12
100
15-Nov-2011 to 15-Dec-2011
Stealing as a servant
25-Sep-12
cum 8,000
15-Nov-2011 to 15-Dec-2011
Cause a detriment to a person by fraud (x2)
25-Sep-12
‘’
11-Jul-12
Wilfully mislead a person affecting the discharge of the person’s duty under this Act
11-Oct-13
500
12-Mar-13
Exceed speed limit in a speed zone between 10 - 20 kms over (17km over)
11-Oct-13
150
9-Apr-13
Wilfully mislead a person affecting the discharge of the person’s duty under this Act
11-Oct-13
1,000
8-Jan-14
No authority to drive – never held and disqualified
5-Feb-14
400;
DL D/Q 9 months
6-Jun-17
Drive motor vehicle using handheld mobile
Unknown
Unknown
The Applicant’s history of offending includes four convictions for dishonesty-related offences and five driving offences. Dealing with the driving offences first, it is worth noting that these offences are characterised by a disregard for both the road traffic laws and the safety of others.
If the Applicant’s dishonesty-related offences are considered as being offences adverse to good character, then a reasonable question arises about the extent to which the Applicant may be found to possess the enduring moral qualities of a person of good character. As will be discussed below, this also has implications when assessing the Applicant’s general conduct.
All criminal conduct is a matter of serious concern. Crimes are, by definition, wrongful conduct giving rise to state sanctioned penalties that may be charged on behalf of the state and, when contested by the accused person, are subject to the higher standard of proof referred to as “beyond reasonable doubt”. Criminal conduct that has either been proved against, or pleaded to by, an accused person is, by definition, serious offending behaviour.
Against this background, it is worth noting that Direction 90, para 8.1.1 designates certain categories of criminal conduct as being “very serious” (at (1)(a)) in addition to including certain particular “conduct” within the range of relevantly serious matters (at (1)(b)). Direction 90, para 8.1.1 also stipulates other relevant considerations including, the sentence imposed where the conduct falls within a range of crimes (at (1)(c)), the frequency and (where apparent,) any trend of offending (at (1)(d)) in addition to the cumulative effect of repeat offending (at (1)(e)) and any false or misleading information provided to the Department by an applicant (at (1)(f)).
Quite apart from conduct found to be criminal in the relevant legal sense, s 501(6)(c) of the Act includes a consideration of a person’s general conduct in the assessment of a person’s character in the context of a visa refusal. This provision states that:
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; or
It is now settled that a person’s past and present “criminal conduct and general conduct referred to cannot, now, be considered to be mutually exclusive.”[30] Further, as Lee J cautioned in Godley v Minister for Immigration & Multicultural & Indigenous Affairs[31] (Godley), specifically by reference to s 501(6)(c) of the Act:
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.
[30] Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 440 at [33] (Black CJ, Hill & Hely JJ).
[31] [2004] FCA 774; 83 ALD 411 at [56].
As explained by the Full Court in the subsequent appeal from the decision of Lee J above, the task required of the Tribunal in such matters is the same required of the Minister, or their delegate, in the first instance, namely:[32]
48.It is clear that a person does not pass the character test if any one or more of the conditions set out in paras (a), (b), (c) and (d) of s 501(6) are fulfilled. For example, if a person has a substantial criminal record, as defined by s 501(7), the person thereby does not pass the character test. Whether or not a person has such a substantial criminal record can only be determined by means of an objective finding by the Minister. Such a finding is therefore implicitly required. If the Minister makes such a determination then, clearly, the person referred to in s 501(1) could not satisfy the Minister that the person passes the character test. In those circumstances, the Minister would then have to exercise his or her discretion as to whether to refuse to grant a visa to the applicant.
49.Thus, s 501(6) requires the Minister to consider the separate matters in paras (a), (b), (c) and (d) and to make a determination whether the person comes within the provisions of any of those paragraphs. In respect of par (c) of s 501(6), the Minister has to consider whether the person is not of good character for either or both of the reasons given in placita (i) or (ii) of that paragraph.
50.If the Minister determines that the person is not of good character, then it must follow that the person does not pass the character test.
[32] Minister for Immigration & Multicultural & Indigenous Affairs v Godley [2005] FCAFC 10 (Madgwick, Lander and Crennan JJ).
The following submissions were made on behalf of the Applicant:[33]
[33] Exhibit A2, 14.
105. The Visa Applicant's conduct, both general and criminal, falls short of qualifying him as being "not of good character". He has never been sentenced to a term of imprisonment, suspended or otherwise. Following his sentencing for the Principal Offence he continued to live, work and study in the Australian community.
106. The documents before the Tribunal do not indicate further behaviour of concern (apart from that which has already resulted in convictions) that could give rise to a finding that the Applicant fails section 501 (6)(d) of the Act.
107. The maximum penalty available to the sentencing court for the Principal Offence was ten years' imprisonment however the Visa Applicant received a substantial fine, which he paid off in instalments. Given that the Principal Offences and the Driving Offences were heard by the Magistrates Court, this suggests they were considered "simple offences".
108. The Applicant has never committed any violent or sexually based offences, and he has never offended against women, children or any individuals in the Australian community. There has not been any trend of increasing seriousness, repeated offending or frequency of offending. The Visa Applicant has never been detained in immigration detention.
109. There is no evidence before the Tribunal that the Visa Applicant previously been formally warned or otherwise made aware in writing about the consequences of further offending in terms of his migration status. In fact, he was granted two visas allowing him to visit Australia years after the Principal Offences were committed - suggesting that at the time those visas were granted, the Department did not consider there to be a risk that he may engage in criminal conduct if allowed to enter Australia.
110. The Offences were committed by the Visa Applicant in Australia and therefore paragraph 11.1.1 (j) of Direction 90 is irrelevant.
111. Overall, the evidence before the Tribunal indicates that while the Principal Offences are serious as they involved a breach of trust, were committed over a period of time and involved deliberate action, they are at the lower end of seriousness on the spectrum of crimes that appear before it.
112. The Tribunal should also place significant weight on the fact that the sentencing court had the option to sentence the Visa Applicant to a good behaviour bond, suspended or immediate term of imprisonment, but instead it chose to give him a fine. The amount of money payable reflects the seriousness of the Principal Offences however it is clear the court did not consider the offences serious enough to warrant a more severe punishment.
(Footnotes removed.)
In rejoinder, the Respondent made the following relevant submissions:[34]
[34] Exhibit R2, 9.
35. The applicant’s offending should be viewed as very serious for these reasons:
a. The stealing as a servant and cause a detriment to a person by fraud offences were opportunistic and involved a significant breach of his employer’s trust;
b. Driving offences are at the heart of the essential safety of the community;
c. The two separate offences of wilfully mislead a person affecting the discharge of the person’s duty under this Act were committed against officials in the performance of their duties, which are to be viewed as serious (paragraph 8.1.1(b)(iii));
d. There is a frequency to the offending and a trend of increasing seriousness (paragraph 8.1.1(d)); and
e. The cumulative effect of the repeated offending over the course of three years is serious (paragraph 8.1.1(1)(e)). The visa applicant has endangered the road safety of the community, transferred fines and demerit points to other drivers for his own illegal conduct and stolen significant sums of money from his employer.
(Footnotes removed.)
The Applicant submitted a psychological assessment report, dated 13 December 2021 prepared by Dr Phil Watts, of Mindstate Psychology Pty Ltd, an Adjunct Associate Professor in Clinical Psychology and endorsed in Forensic Psychology. According to this report, Dr Watts conducted his assessment on 10 December 2021 in the form of a face-to-face video interview lasting approximately two hours and standardised psychological testing in the form of the Personality Assessment Inventory (PAI). Dr Watts’ characterisation of the Applicant’s criminal offending is as follows:[35]
[35] Exhibit A3, 5.
26. Essentially, the Court Outcomes History relates to two types of offending. The first is related to motor vehicle, predominantly license-related issues, and the second related to Stealing as a Servant.
27. The driving charges themselves relate to Driving without a Licence or Appropriate Class of Licence (Unauthorised Driving by Learner Driver, No Authority to Drive), or miscellaneous offending (Driver Failed to Ensure Passengers under 16 Restrained, Driving Vehicle Without Lights). These have all been dealt with by minor fines between $100 and $400. The two related offences of the more serious nature were Willfully Mislead a Person, Affecting the Discharge of that Person’s Duties under this Act, Road Traffic Act, resulting in a $1,000 and a $500 fine. These two offences potentially relate to [the Applicant] paying the fine but putting his mother as the driver when she was not even in the country.
28. When I discussed these offences with [the Applicant], essentially the motivation as explained was that he was driving because he needed to get somewhere, he used his mother’s name because he could not afford to lose his license when he had employment and study to attend to. This, essentially, shows a rather naïve and entitled attempt at getting out of trouble. In and of themselves, these offences are at the mild end of the scale and, while quite clearly wrong, were not indicative of anti-social personality traits, rather a sense of entitlement.
29. The more serious offending relates to [the Applicant] working for BP at a service station. The details of this offence have been well-described in different documentation. Essentially, over a short period of time on repeated occasions [the Applicant] would input the customer’s transaction, when the customer left the store he used a stolen credit card he had found at a previous BP service station and performed a manual fuel correction to the value of the genuine purchase onto that credit card. This allowed the books to balance. He then refunded the total to his bank account or transferred funds to gift cards. Essentially, neither the customer nor the bank was the victim, but BP would end up with the loss when the bank did honour the credit card purchase.
30. …
31. If I accept the fact that the credit card left in the service station is being used immediately, the offence essentially shows quite a number of repeated transactions over a relatively short period of time (19 occasions between 15th November 2011 and 1st December 2011, and 10 occasions between 12th December 2011 and 15th December 2011). The money was not used for any particular purpose and [the Applicant] could not explain to the Court exactly why he did it. There were none of the usual co-offending variables such as gambling, drug addiction, economic necessity. The money had not been spent and the money was able to be repaid, the Judge describing it as “inexplicable really”.
32. In the Transcript the Judge talks about “a bad mindset” being raised. [the Applicant] believes that the concept of mindset was misunderstood in the cross-cultural explanation. He said that what he was trying to explain was that he does not know why his mind caused him to do what he did.
33. In my own discussion with [the Applicant] in regards to this offence, much of the focus of why he did it seemed more about testing the process than actually stealing the money.
34. The Pre-Sentence Report provided to the Magistrate rated [the Applicant] as a low risk of reoffending. The Judge, on page 8, said “I struggle to some degree with coming to the conclusion you are unlikely to offend like this again, but I could probably accept that, given your remorse, given your admission, given your acceptance of responsibility, given these references, given your young age, it probably is the case that you’re unlikely to offend like this again.”
35. I, like the Judge, hold a degree of hesitation around the likelihood of reoffending due to the inexplicable nature. However, unlike the Judge, I have seen several cases in my career where people have engaged in similar processes, not so much to get gain but curiosity around how systems work. Also, unlike the Judge, I have the benefit of the nearly 10-year history which shows no similar types of reoffence occurring, other than perhaps using his mother’s name to keep his license which, as I say, relates more to entitlement and necessity, which appears to be a different dynamic.
Dr Watts offered the following opinion evidence, based on the foregoing characterisation and assessment:
36. The driving-related offences and the Stealing as a Servant and related offences were dealt with via fines, and did not meet a threshold for imprisonment. Therefore, while serious, they are certainly at the lesser end of the serious spectrum.
37. As explained above, [the Applicant] shows no evidence of any significant reoccurrence in the last 10 years. He indicated that he works in trusted positions, including having access to large corporate credit cards. He, similarly, points to the fact that he had successfully worked at McDonalds with significant success and no allegations of any dishonestly. I would conclude that [the Applicant’s] risk of reoffending is quite low, especially given the 10-year period since the offences…
38. [The Applicant] quite clearly comprehends his offences as serious. He sees them as serious both because of what they entail in terms of his employment, and particularly because of the serious repercussions of Court, criminal record, and impact on immigration. Consequently, he understands the seriousness from several different aspects.
39. His attitude to the driving offences were a little dismissive in that he saw that he acted out of necessity, whereas his attitude to the Stealing as a Servant offences showed genuine remorse…
40. The relatively young age is a significant factor. Psychologically, people have the last myelination of their frontal lobe at 26. That is when they get their full adult brain and full capacity to comprehend and get insight. I would offer the view that [the Applicant] had come from a fairly sheltered and privileged background which had blinkered his view of the world. I would be of the opinion that being caught and dealt with in such serious ramifications will have had a major impact upon him. Therefore, the combination of young age and the significant repercussions of the offence is likely to be a highly relevant factor in lowering further offending…
41. In my opinion, [the Applicant] has not undertaken rehabilitation. I am of the opinion that the combination of his culture and background does not make him someone likely to be psychologically-minded. However, he recognizes the seriousness of the offence and I am doubtful that attempting to counsel him would have had any additional benefit over and above the Court process…
42. In terms of [the Applicant] engaging in serious offences such as Stealing as a Servant, my opinion is that he would be of low risk, especially given the 10-year period since that time.
43. In terms of [the Applicant] committing serious driving offences, I hold no particular reason to expect him to do so. However, in terms of the possibility of minor driving offences such as speeding, I would suspect that the sense of entitlement may cause him to justify minor variations. I am of the opinion that he did not understand the seriousness of using somebody else’s name for the demerit points when he did so. However, I would be of the opinion that he will have learned the importance as a consequence of his actions, and I would consider him low risk for the more serious-end offences with which he has previously been identified.
During the first hearing of this matter, I questioned Dr Watts regarding his characterisation of the Applicant’s criminal offending and his consequential opinion evidence as follows:[36]
[36] Transcript, 1 March 2022; 67-72.
MEMBER: I’ve got a couple of questions, Dr Watts. Thank you for your report; I found it very interesting and potentially very helpful. Now, we’ve been talking a few moments ago about his Honour’s sentencing remarks. I note that these - the stealing offences, if we want to call them that - they happened in two different contexts, didn’t they?‑‑‑
Dr WATTS: I’m not sure what you mean by two different contexts.
MEMBER: Two different stores?
Dr WATTS: My understanding was that they were both BP servo and in fairly close proximity to it. So it’s just when he’s been working in the shop, so the card came from one shop but was used in a different shop.
MEMBER: Yes, so that’s not a contextual difference?
Dr WATTS: No. I think, like I say, I think he picked the cards up. He said, you know, he’s described it - I can’t remember if it’s in the sentencing remarks, but certainly when I spoke to him, but it’s quite frequent that people leave their cards when they’re leaving the store, and he’s taken the card from one store to another. One of the points which in paragraph 30 of my report, the judge in his sentencing remarks talks about it being a long time that he’s hung onto these cards, whereas [the Applicant] is quite adamant that these all happened in a fairly close proximity. It wasn’t a previous workplace, as in a different job. It was a different store, and that was a matter of days, not nine months.
MEMBER: Okay, well just bear with me for a minute. I’m trying to get my head around what you mean by context. Because it’s easy to kind of see each instance as part of an interconnected whole. But every single step along the way was a separate step. Taking someone’s card that wasn’t his was a step. Putting it in his pocket was a step. Using it for some unpaid fuel was a step. Using it to purchase gift cards was a step. Reconciling the end of day balances was a step - quite a complicated step, actually. Monitoring what’s been happening with the reporting afterwards is a process, actually, not just a step. Taking it to a different location and trying the same sorts of behaviour - many, many steps. So when you’re talking about context, just can you help me understand what you mean by context?
Dr WATTS: The - okay, I agree with you that the - any offence is made up of a series of components, and there’s a number of - you know, as you quite correctly say, there’s a number of steps involved with it. But essentially he replicated the same thing - if I’ve got my facts correct - 19 times and ten times with the two different cards over about a couple of week period.
MEMBER: Sorry, I think it’s different counts, but a variety of different behaviours?
Dr WATTS: I’m - maybe I’m a little bit lost there.
MEMBER: That’s all right.
Dr WATTS: Because my understanding was that he was crediting - doing the same thing with the card each time, was that somebody would buy fuel and then he was refunding it to the card, and he did that 19 times and then ten times.
MEMBER: Yes, okay. So I think I understand. You’ve used the term, “context,” in a fairly flexible manner, is that right, in your report?
Dr WATTS: Yes, which paragraph are you looking at for the context?
MEMBER: Well, throughout the report in different places. But also in your evidence today you use this term, “context”. Let me put it to you a different way. We’ve got a person who - I have to make an assessment based on the facts as to whether or not this person meets the character test. So, in a sense, individual instances is not really the point. I have to try and work out the character of the person into the future. And, as you say, past history can be some indication of future outcomes. Imperfect, proximate, but that’s kind of a rule of thumb?
Dr WATTS: Yes.
MEMBER: So I’m trying to look through all of this evidence to see the character of the person. And when you talk about context, it’s an interesting term. I’m trying to understand it from your perspective. But I’m looking at the character within the context. I’m looking at a person who, based on a clinical assessment you had him complete - sorry, I’m just looking at the inventory that you applied?
Dr WATTS: Yes.
MEMBER: The 344 questions - when was that conducted?
Dr WATTS: On 10 December.
MEMBER: Okay, 10 December. So, on 10 December he completed a clinical instrument which you reviewed, and you’ve compared to a series of relevant norms. And on 10 December last year you indicated that - paragraph 21:
No particular elevations on the primary scales. No evidence of any major mental health disturbance. The only scales which showed any tendency to elevation were the mania grandiosity scale, some degree of obsessive compulsive.
I guess almost all of us could be found to have the same sorts of symptoms. But we’ve got:
Not particularly adventurous or impulsive. Scale would indicate a low likelihood risk of misconduct.
And then:
Interpersonal scales - likely to meet others in a friendly, agreeable manner.
And then 24:
In summary, the profile would indicate in the absent of antisocial attitudes a lack of factors which would typically be associated with offending. The main variable of note was grandiosity.
Dr WATTS: Yes.
MEMBER: And you say: “Which would suggest a sense of entitlement”. Now, later in your report - I think I saw - “curiosity” - sorry, I’m just trying to find where you put it - paragraph 28:
When I discussed his offences, particularly the road traffic offences, he said the motivation was explained - he was driving because he needed to get somewhere and he used his mother’s name because he couldn’t afford to lose his licence. This essentially shows a rather naïve and entitled attempt of getting out of trouble. In and of themselves these offences are at the mild end and, again, a sense of entitlement.
So what I hear you say in these paragraphs is that at testing in December last year he demonstrated a sense of entitlement. In conversation with you clinically he demonstrated a sense of entitlement. You think that that’s consistent with some of the prosaic history that’s been provided in the documents. Again, in paragraph 35:
Unlike the judge, I have the benefit of a nearly ten year history which shows no similar types of re-offence occurring.
Well, we don’t know that. What we know is that he hasn’t been charged with anything?
Dr WATTS: Yes. Other than perhaps using his mother’s name to keep his licence, which, as I say, relates more to entitlement and necessity.
MEMBER: By entitlement and necessity - just help me out here understanding how that relates to conduct of deception. Because the credit card offences - were deceiving the owners of the credit cards, the banks, his employer, over a period of time. And with his failing to take responsibility - I can see that side of it with the entitlement, with respect to, you know, “I got a speeding fine, I don’t want to lose my licence,” okay. But his response to it is to lie. That is deception. And it’s not just lying, but it is lying to an official, which is a level of seriousness above the level of lying to your friends. So, are we just dealing with an entitled person who is going to continue to engage in the same conduct opportunistically into the future, or are we dealing with somebody who has learnt a lesson, or is there a lesson that can be learnt? Is this a personality trait? Do you understand the kind of ‑ ‑ ‑?
Dr WATTS: Yes, yes. Well, I understand what you’re saying. And that’s the - as I say, with the credit card offence, one of the things I try to do is work out what the driver is as best as possible. Because, as I say, the most common sorts of credit card frauds are drug and gambling and things like that. So they’re deliberately seeking the money. Whereas this one, as the judge makes very clear, he wasn’t, you know, engaging in this process specifically for the financial gain. It was, you know, the judge themselves saw it as - you know, has made mention of partly inexplicable but partly for curiosity.
MEMBER: Well, there’s a normative assessment in that though, isn’t there?
Dr WATTS: There is.
MEMBER: Because a person who steals to feed an addiction is not necessarily being volitional?
Dr WATTS: No, but with this we’re also then dealing with a young - you know, at the time he was relatively young, and again I see, you know, from the sort of upbringing I think he had was quite sheltered, naïve and privileged sort of view. And that’s where I think the entitlement played out with these offences. I think ten years - you don’t get your last myelination of your frontal lobe, your full sort of cognitive control and insight, until you’re about 26. So there’s a number of factors where I see that it’s likely that he will have matured, learnt consequence and grown up and have a greater sense of seeing it. Yes, the testing still shows that there’s a degree of that entitlement ‑ ‑ ‑
MEMBER: Yes, how do you ‑ ‑ ‑?
Dr WATTS: ‑ ‑ ‑ but the likelihood ‑ ‑ ‑
MEMBER: How do you align both of those facts?
Dr WATTS: Because that’s - like I say, that comes through the personality traits. You’d sort of say but we all could come out with those traits. Yes, we all could, which is why these things are then normed - so, compared to the norm he has a greater share, if you like, of that.
MEMBER: Even after learning all those hard lessons ten years ago?
Dr WATTS: Well, that’s an aspect of personality which - it isn’t necessarily related, you know - the sort of grandiose aspect of personality. There’s plenty of people that have that who don’t commit offence.
MEMBER: Yes.
Dr WATTS: Movie stars and actors and people like that also show high grandiosity. But, like I say, going with that is that sense of entitlement. But, as I say, what I’m putting forward is that as the young adult with that sense of entitlement in these situations, he’s gone to that sort of lie to get out of trouble for the offences - for the driving offences. And my opinion is that, you know, ten years down the track he’s likely to be low-risk of redoing that sort of thing.
MEMBER: Okay. What about this for a contextual difference - at the time he was engaging in this conduct at the BP, he was also in a position of responsibility at McDonalds. And the difference being, of course, that in one context he was largely working alone and unsupervised. In the other context he was part of a team and effectively under peer supervision throughout his time. In one context, an unblemished record. In another context, a record of offending. Similarly, no one was present when he decided to nominate his mother for his speeding tickets. Is there a contextual difference there of relevance that might inform your assessment?
Dr WATTS: I mean I again gave a lot of thought about he was working at McDonalds, the fact there’s people around on one hand can be a - you know, it may have been a protective factor. But the other aspect is if you are actively motivated to do these sorts of things. I would have expected he would have found a way to have done it in McDonalds as well. He was assistant manager. There’s plenty - you know, I would have thought there’s plenty of opportunity to step aside, and if there’s more people it’s easier to cover your tracks. So there’s a number of factors which can apply in both situations. So, as you say, he has an unblemished record in that. Was it because it was a team environment so there was higher scrutiny, or was it because, you know, it didn’t go - you know, because he didn’t go down that path there?
MEMBER: Well, I beg your pardon, but I asked the question. And you seem to have asked me the question I just asked you.
Dr WATTS: Yes, but - so, at the end of the day what I see is that, yes, it is a different context. I would have thought with the similarities, if someone was motivated to be deceptive, I would have expected to have seen something in the McDonalds, irrespective of the fact it’s a team approach.
MEMBER: You see, I find it - more than the puzzlement of his Honour - I find it a stark difference that at the time he was committing these offences at BP, over a prolonged period of time, he was nominated for and awarded assistant manager of the year at McDonalds. I find those differences to be quite striking. But you don’t find them particularly of note?
Dr WATTS: Well, I do. That’s why I think the - as we sort of touched on, the motivation not being so much around deception, but more around that sort of curiosity, what I can get - what I can do in terms of these processes. The intellectual challenge of it makes sense. That it’s something that’s occurring in the BP, not in the McDonalds.
MEMBER: And the fact that he hasn’t disclosed any of this to his in-laws. Is that of relevance? Is that a different context?
Dr WATTS: No, that’s a very cultural thing. I saw a person from a similar part of India who had been in a motor vehicle accident and was quite injured, and it affected his study, but he wasn’t telling his family because of the potential shame just from having being injured, let alone having done something wrong. So, I ‑ ‑ ‑
MEMBER: The applicant has told his own family.
Dr WATTS: Yes. But, like I say, that whole ‑ ‑ ‑
MEMBER: A different context?
Dr WATTS: Sorry, you’re breaking up.
MEMBER: So they’re different contexts? Sorry, is that a different context?
Dr WATTS: Yes, is it a different context - yes, it is.
The opinion evidence of Dr Watts appears to be substantially based in his characterisation of the Applicant’s criminal offending. In this respect, I note that the characterisation of a given applicant’s criminal offending is a legal fact, about which this Tribunal must make the relevant findings with some care and regard to procedural fairness.[37] In this respect, I note my own characterisation of the Applicant’s criminal offending as highlighted in the foregoing transcript extract thus:[38]
Because the credit card offences - were deceiving the owners of the credit cards, the banks, his employer, over a period of time. And with his failing to take responsibility - I can see that side of it with the entitlement, with respect to, you know, “I got a speeding fine, I don’t want to lose my licence,” okay. But his response to it is to lie. That is deception. And it’s not just lying, but it is lying to an official, which is a level of seriousness above the level of lying to your friends. So, are we just dealing with an entitled person who is going to continue to engage in the same conduct opportunistically into the future, or are we dealing with somebody who has learnt a lesson, or is there a lesson that can be learnt? Is this a personality trait?
[37] NDBR v Minister for Home Affairs [2019] FCA 1631 (Bromberg, Markovic and Banks-Smith JJ).
[38] Transcript, 1 March 2022; 70.
Of some relevance to this question was the evidence of the Applicant’s character witnesses. One of those witnesses, Mr Ernest Gaspar, provided a Statutory Declaration in support of the Applicant dated 24 August 2020. This statement opens with the phrase “I have known [the Applicant] since 2013”. The thrust of this written reference can best be captured in its closing paragraph, which describes the Applicant as “a person of exemplary character”. Relevantly, the witness declared that:[39]
I am aware of [the Applicant’s] previous driving offences and also the matter of the credit cards while he was employed at BP in 2011 as a customer service representative. I admit to having been quite shocked when informed by [the Applicant] of these matters, since during the many years of my association with him I found him to be a person of his word, punctual and reliable in every way, generous in his business dealings and always willing to give assistance. I cannot envision any such conduct from [the Applicant] in the future since his character is now completely inconsistent with his conduct of many years ago.
[39] Exhibit R1, 696.
When Mr Gaspar was sworn at the first hearing, he affirmed his prior declaration and (at least initially) re-stated the positive character assessments contained therein. As his questioning proceeded, the witness was given the full details of the Applicant’s record of criminal offending. It became apparent that the witness did not know the full details of that record prior to the hearing. Towards the end of his evidence the following exchange took place:[40]
[40] Transcript, 1 March 2022; 101.
MEMBER: If I could put it to you this way, Mr Gaspar, the thrust of your evidence as I take it, and correct me if I’m wrong, is that as a younger man he made some mistakes. Probably more than a lot of people, but he’s made mistakes as a younger man. I heard you say you’re prepared to make allowances for that. These are my words not yours, but is that close to the thrust of your evidence?
WITNESS: Yes, it is.
MEMBER: I think there’s a significant point of departure though, is there not, when we talk about his conduct towards you at the time you wrote the reference. I’m having to make a determination about [the Applicant’s] character moving forward, which is as fascinating as ancient history might be, and there are lessons to be learned from it, I’m interested, in particular, about the character of the person I’m dealing with and I have to make a decision about. As Ms Jones-Bolla has been addressing questions to you, I hear a different energy in your responses about his level of disclosure to you at the time you wrote the reference. And his conduct towards you around these proceedings. That’s not the person who’s on the record, that’s the person I’m looking at. But you’re expressing some hesitations about that person’s character, if I’m hearing you correctly, is that correct?
WITNESS: Well, to a degree, yes, that’s true. To a degree, yes. I - yes - that’s - I’m still a little bit shocked to see what I’m seeing and hearing today.
MEMBER: If you were to cast that reference, the character reference, because it’s all very interesting to know what might have transpired between the two of you. The reason you’re hear is to speak to the man’s character. Today knowing what you know, can you say something about the man’s character. Would it be the same thing that you said in August 2020?
WITNESS: No, I would have - knowing this I’d have to temper that some way.
MEMBER: Help me out?
WITNESS: If he’d given me these details I would of - - -
MEMBER: Would you be here if he’d given you those details?
WITNESS: If he’d given me these details and then forthright with me, I would have given the same reference. He didn’t reveal this to me, so I would have to certainly rephrase what I’d written, if at all I gave him a reference.
MEMBER: But he didn’t give you the details?
WITNESS: He didn’t. No, no, not quite as it’s been presented today, no. No, that’s for sure.
MEMBER: I’m not sure I can derive much more by having that conversation any further. Ms Jones-Bolla, are there any outstanding questions you wanted to touch on with this witness?
MS JONES-BOLLA: If I can just summarise what the Member has just asked you. Just one step further, it’s the lack of honesty in respect of [the Applicant’s] telling you about the offences. The lack of honesty in respect of what he’d told you, that causes you concern about having given a statement?
WITNESS: Yes, I would have been a markedly different statement, had I known what I know now.
MS JONES-BOLLA: You would have given a markedly different statement had you known –
WITNESS: Yes.
MS JONES-BOLLA: -- the complete set of circumstances in respect of those offences?
WITNESS: It certainly would have been worded different.
MS JONES-BOLLA: You would have worded it different. For example, when you say:
Granting permission for [the Applicant] to remain in Australia would be in the best interest of the Australian community.
You would have worded that differently?
WITNESS: That’s a difficult question to answer.
MS JONES-BOLLA: You go on to state there, since he is now for many years been a person of exemplary character’. Would you consider his character exemplary when he hasn’t disclosed those instances to you as late as August of 2020?
WITNESS: I can see that this was not disclosed fully to me. However, his dealings with me were impeccable. So, look, I - as I say I’m torn in respect and yes to me he’s been flawless with exclusion of this particular aspect.
MEMBER: Which is the reason you’re here?
WITNESS: Which is the reason I’m here, sure.
MEMBER: It’s rather material, wouldn’t you think?
WITNESS: It is from your perspective, certainly.
MEMBER: Ms Jones-Bolla, anything further?
MS JONES-BOLLA: No, nothing further from me, Member.
MEMBER: Thank you very much, Mr Gaspar. Thanks for that. Ms Graziotti, anything on redirect?
MS GRAZIOTTI: No, Member, I don’t have any questions
In the present context (and given the circumstances disclosed in the foregoing transcript extract) the views of this witness are, perhaps, of limited relevance. What is, however, materially relevant, in the present context, is that the Applicant was content to call as a character witness a person he had known over many years after failing to make a straightforward and factually correct disclosure to the witness about the precise nature of the Applicant’s own criminal offending. Rather than being an historical artefact, this conduct of the Applicant was entirely contemporary with his application for a visa and continued into the present review. Given that the present proceedings concern the question of whether the Applicant is of good character, it is difficult to characterise this conduct on the part of the Applicant as anything other than misleading or deceptive. I find that the Applicant’s conduct with respect to this witness was not that of a person possessing the enduring moral qualities of good character.
It is likewise notable that, while the Applicant has made his record of criminal offending known to his own family in India where he currently resides, he has not made the same disclosure to the family of his spouse.[41]
[41] Ibid 55.
Another character witness appeared at the hearing on the Applicant’s behalf; Mr Damien Meenan, Managing Director of Complete Interior Fitouts Pty Ltd. Mr Meenan provided two signed statements in support of the Applicant’s visa application, one dated 28 August 2020 and a subsequent undated statement. Both statements were made with clear knowledge of the Applicant’s history of criminal offending. According to those statements, the witness had known the Applicant since 2012 at which time the Applicant was engaged as an IT contractor to the witnesses’ business. The Applicant disclosed his history of criminal offending to the witness sometime in 2020.
The witness was unstinting in his commendation of the Applicant in terms of professionalism and trustworthiness. At the conclusion of his examination by counsel for the Applicant, the following evidence was given, and is an indicative extract:[42]
MS GRAZIOTTI: Do you have anything else that you’d like to say to the tribunal?
WITNESS:I - I’d just like to say that, from 2013, [the Applicant] has been just excellent to me through services, and, with what he’s done with the BP and the few - and the others, those offences, I think he’s changed tremendously from what he’s done, and I think there’s only one person that have to live with what he done, and that’s himself, and I think he has - he has changed in many, many ways to improve his life, his trustworthiness - I’ve always had it, even when I heard of it after, because, from what he deals with for me, it’s - it’s money. It’s all money. It’s nothing else but money for a business, and, obviously, everything else that he does is the accounts, it’s sending out invoices, but it’s all about receiving money, and - and if we don’t receive that money, he’s checked the bank account, he has - that’s his job, and he - he cannot send a delivery out without checking the bank account. And, personally, if [the Applicant] wanted to steal off me, he could’ve - he could clean me out in two hours. He could empty the bank account in two hours, and that would be everything finished. So I have full trust in him over 2013. And also I’d just like to add, too, that he’s used my business partner’s credit cards, too, many a times, for - for using transaction for payments for laptops, for new computers, for just IT in general. If my business partner (indistinct) he just hadn’t time to make the transaction or do it when he’s back in the office, [the Applicant] didn’t ask him for the credit card, but my business partner were all happy to give it to him, and that’s over several years.
[42] Transcript, 16 June 2022; 122-123.
Evidently, the Applicant is capable of providing faithful service in the discharge of his duties. That much can be discerned from his November 2012 performance award from McDonalds Australia as an outstanding assistant manager throughout that year. Before the Tribunal there are, in fact, numerous commendation certificates from McDonalds, where the Applicant was an employee between 2009 and 2014.[43]
[43] Exhibit R1, 742-745.
In the context of this decision, 2012 was an interesting year, given that the period of consideration for that award appears to have substantially coincided with the Applicant’s criminal conduct at the BP service stations and his subsequent conviction. That the Applicant is capable of generating positive impressions of his character in the minds of others is demonstrated amply by the numerous personal commendations and character references included among the materials before the Tribunal. It is also reflective of the findings of the PAI instrument applied by Dr Watts.[44] However, with the exception of the Visa Applicant and Mr Meenan, none of the authors of the written commendations before the Tribunal has demonstrated a straightforward understanding of the Applicant’s full record of criminal offending. This lack of clarity about the state of knowledge of the authors deprives those statements of much probative weight as to the Applicant’s character.
[44] Exhibit A3, 4[23].
The predicament before the Tribunal is that there is evidence from an expert witness that may support a finding that the Applicant is a person of good character, depending on how one views the way in which that expert witness has characterised the Applicant’s criminal offending. There is also the emphatic evidence of the Applicant’s principal client, who has placed full financial and operational trust in the Applicant over many years, more recently with full knowledge of the Applicant’s record of criminal offending. These views are worthy of careful consideration, and I give them significant weight.
On the other hand, the Applicant’s capacity to engage in wilful and self-interested deception of others who place their full faith and credit in his hands is both well-documented and enduring. I put the dilemma created by the Applicant’s conduct to him directly at the hearing as follows:[45]
[45] Transcript, 1 March 2022; 55-56.
MEMBER: Yes, yes. One other thing, your wife has told us that your mother-in-law and father-in-law don’t know about your visa refusal. Do your parents know that your visa has been refused?
APPLICANT: Yes. My parents know about that. Yes.
MEMBER: Do they know why it’s been refused?
APPLICANT: Yes. They are aware of the refusal because of the character issue.
MEMBER: Is there a particular reason why you haven’t told your in-laws? You’ve told your own parents, why haven’t you told your in-laws?
APPLICANT: I don’t really want to give them too much stress because, at the moment, my father-in-law is suffering from heart disease and mother is taking care of [JZ] all the time and she is very stressed already. And in the opportunity given in future, I would personally speak to her and tell her that this is not something who I am and I am really sorry that I am telling you this at this time and things that I’ve done in the past. And I’m sure you know how I am and you’ve seen over the period of time that this is not something I would do in future.
MEMBER: Yes Sure. You’ve had six years to tell them, why haven’t you told them over the last six years?
APPLICANT: I could possibly tell, but I would better be there and tell, rather than just completely say something from (indistinct). They would feel more deceived and I don’t want to deceive anyone else at this time. I want to make sure that I - they know me who I am and they put a trust in me and I want to live up to that trust that they have put in me for this many years. I want to show them in future with my wife and their daughter.
MEMBER: Yes, but aren’t you deceiving them?
APPLICANT: I am, Member, but for the reason if I don’t want them to cause any trouble with their health or more stress to their life, that’s the reason I am not saying to them.
MEMBER: So, you deceived your employer about the fuel not being paid for, even though you knew that was against the rules of BP. You deceived the police about who was driving your car and you continued to deceive your own in-laws. But in each case, it was because you had a good reason. You didn’t want to lose your licence, you didn’t want to get in trouble, you thought you were helping people, you don’t want to upset someone. So, I take it from that that it’s your view that it’s acceptable to deceive people if you have a good reason. Is that right?
APPLICANT: No, Member. For the last one that I told you about my in-laws, because I love them and I don’t want to hurt them. I don’t want them to cause (indistinct) me any trouble. But the first two ones, it is all my mistake. It is like I don’t know whether it - it is complete that I (indistinct) deceiving activities because to save the licence by committing another offence, it is, I have (indistinct) that and I would never do that again. Ever. And you know, to do that, how you said about me taking the cards of the - you know the stealing offences in 2011, it is something I have learned and I know that I’m (indistinct) very high responsibility. It is not even a single chance that I would deceive anyone. I (indistinct). First thing is deceive is yourself, by doing something. And then, you would go on deceive someone else. So, I would not do that ever again (indistinct).
MEMBER: Okay, thank you.
The Applicant’s propensity to be deceptive in his dealings with others does not appear to be incontinent. Only the Applicant can truly know what particular combination of factors shift his calculus towards misleading or deceiving others. However, it is clear from the evidence surveyed above that the Applicant’s resort to such a calculus of deception is general conduct by the Applicant reflective of moral qualities of a real and enduring nature. The Applicant’s continuing general conduct here identified falls within the class of conduct identified at placitum 8.1.1(b)(iii) of Direction 90 as being “considered by the Australian Government and the Australian Community to be serious”. These enduring moral qualities of the Applicant are inimical to being a person of good character as envisaged by the relevant statutory test.
Besides his attestations of remorse, which are noted, the Applicant’s lack of insight into his character issues remain of some concern. Of interest in this respect is the evidence of Dr Watts when asked to opine in his written report on; “[t]he adequacy of [the Applicant’s] efforts at rehabilitation since the last offence has occurred”. Dr Watts stated as follows:[46]
41. In my opinion, [the Applicant] has not undertaken rehabilitation. I am of the opinion that the combination of his culture and background does not make him someone likely to be psychologically-minded. However, he recognizes the seriousness of the offence and I am doubtful that attempting to counsel him would have had any additional benefit over and above the Court process.
[46] Exhibit A3, 7.
I further note that Dr Watts’ clinical assessment of the Applicant included the following commentary:[47]
20. In addition, the PAI has a series of scales to determine the response-style. There are scales which help to determine whether somebody either presented themselves as overly negative (possible malingering) or overly positive (defensive). The Negative Impression (NIM) scale was not significantly elevated, suggesting the likelihood that “in general the client did not attempt to exaggerate or distort the negative characteristics or psychiatric symptoms assessed by the scale.” The Positive Impression Management scale would indicate that [the Applicant] was attempting to present, to some degree, in an overly positive image of himself in certain areas. It is possible that he has denied, downplayed, or has little insight into potential problems he reported on the PAI. Approximately one-third of the correctional sample had higher scores. The Defensiveness Index was not significantly elevated, and the Cashel Discriminative Function was not elevated, suggesting he was relatively open and forthright. Therefore, there is no evidence of effortful distortion, but it would suggest that his approach to the task was of excessive defensiveness.
21. When the clinical scales are looked at as a whole there were no particular elevations on the primary scales, suggesting no evidence of any major mental health disturbance. The only scales which showed any tendency to elevation was the Mania/Grandiosity scale and there was some degree of obsessive-compulsive symptoms.
22. The PAI report, based on comparison with other offenders, would indicate that [the Applicant] showed relatively few anti-social traits and behaviours compared to the criminal population. He was not particularly adventurous or impulsive. The scale would indicate a low likelihood of risk of misconduct.
23. On the interpersonal scales, [the Applicant] was elevated on both Dominance and Warmth, which would indicate that he is “likely to meet others in a friendly and agreeable manner and is likely to be able to assert himself when needed. Others are likely to view him as friendly and somewhat extroverted”.
24. In summary, the profile would indicate an absence of anti-social attitudes and a lack of factors which would typically be associated with offending. The main variable of note was Grandiosity, which would suggest a sense of entitlement.
[47] Ibid 4.
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[54] the effect of the Full Court’s judgment in FYBR v Minister for Home Affairs[55] (FYBR) and the current state of the law was summarised as follows:
156.... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
157.Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
[54] [2020] AATA 3953.
[55] [2019] FCAFC 185.
Justice Stewart in FYBR found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-422; 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case — they are to be understood and applied normatively.
Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79. ... The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
Applicant submissions on this primary consideration were, relevantly, as follows:[56]
157.The Visa Applicant acknowledges that the Australian community expects non-citizens to obey Australian laws while in Australia. However, he contends that the offences in his criminal history are not of such a nature that the Australian community would expect that he should not be granted a visa to reunite with his wife. Further, there is no evidence before the Tribunal that supports a finding that the Visa Applicant presents an "unacceptable risk" of reoffending.
158. If the Tribunal finds that the Visa Applicant does not pass the character test, then the Australian community's expectation that non-citizens obey Australian laws while in Australia weighs against setting aside the Decision. However, it is outweighed by his low risk of reoffending and the other considerations (discussed below).
[56] Exhibit A2, 21-22.
The Respondent made the following submissions regarding this primary consideration:[57]
51. Observing the norm stipulated in paragraph 8.4(1), and in accordance with the guidance provided by Principles 5.2(4)-(5) of Direction 90, the Australian community would expect that the applicant should not hold a visa on account of the offences he has committed as well as the risk of further offending and infliction of harm, particularly in circumstances where he was a holder of a limited stay visa at the time of the offending.
52. This primary consideration therefore weighs heavily in favour of refusal.
[57] Exhibit R2, 12.
Due to the application of the “norm”, as it is now referred to in para 8.4(1) of Direction 90, together with the deeming operation of the corresponding Direction as found by the Full Court in FYBR, and given the nature of the Applicant’s criminal offending this primary consideration weighs against the revocation of the Refusal Decision.
I further find that this consideration should be given moderate weight.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests
International non-refoulement obligations (para 9.1)
Paragraph 9.1 of Direction 90 relevantly provides:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2)In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
…
Neither party made written submissions to the Tribunal on this consideration.
In the present case, I find that the non-refoulement consideration does not arise in the context of the Refusal Decision, given that the visa refusal decision does not give rise to any non-refoulement obligations.
This consideration is therefore neutral with respect to the requirements of Direction 90.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
Neither party made written submissions to the Tribunal on this consideration.
In the present case, I find that the extent of impediments if removed consideration does not arise in the context of the Refusal Decision, given that the visa refusal decision is not a decision on removal of the Applicant from Australia.
This consideration is therefore neutral with respect to the requirements of Direction 90.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 provides:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Neither party made written submissions to the Tribunal on this consideration.
Having considered the evidence before it and the parties’ submissions, the Tribunal finds that this consideration does not arise and is therefore neutral with respect of the requirements of Direction 90.
Links to the Australian community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia and the impact of non-revocation of the visa cancellation decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
The Applicant made the following submissions relating to this other consideration:[58]
[58] Exhibit A2, 22.
The Review Applicant
160.The Review Applicant is an Australian citizen having arrived in Australia on a humanitarian visa on 16 May 2006. Her entire immediate family are Australian citizens and reside in Australia, including her mother, father and three brothers. They all have a permanent right to reside in Australia.
161. The couple met following the Visa Applicant's most recent offence and together they built a life in Australia. They have been married for nearly six years and have made concrete steps (including purchasing property together and planning to start a family) towards their future together in Australia.
162. The recent period of separation caused by the Covid-19 pandemic has been incredibly difficult for them both. They are desperate to be able to be together and provide each other with physical support which they have been lacking since being separated.
163. The Visa Applicant stated in September 2020:
[The Review Applicant] coming to my life has changed everything I have only progressed without looking back and have only achieved good and improved the quality of life every day. [The Review Applicant] is aware of my past misdemeanours and has supported me throughout this entire time. We have had to spend extended periods apart due to our physical location and il [sic] is very detrimental to our mental health and relationship. When I was on tourist visa in 2017 to be with my wife [the Review Applicant] we decided to get a home for both of us to live ... I hope to be with my wife in Australia very soon so we can start our future together properly.
164. The Review Applicant states:
I speak to [the Applicant] all the time. Basically when I'm not at work I am on Facetime with him util [sic] I sleep. I last saw him in March 2021. I came back on or around 6 March 2021 and I haven't been able to go back this year because of money and also Covid-19 restrictions. Our plans to see each other in 2020 for his birthday were also cancelled because of Covid. It was really devastating. Not only was it very hard emotionally but I had to quit my job to get the travel exemption because I had to show I was leaving Australia for more than three months to be able to leave. My job would not let me work from home or from outside Australia.
…
When I was in India I had some language issues because I did not understand the language of that area which is Gujerati. I am also a Muslim and there is a different lifestyle in India. It's noisy and chaotic. If I ever lived in India I would find it very hard to get a job. However, I moved from Afghanistan to Pakistan to Australia - it would be too much for me to move to India. My parents are here, I went to high school here, I am an Australian citizen. I don't see myself moving anywhere else, not just India.
…
I am the only daughter in my family and my mum and I are very very close. I also am very close to my brothers and I can't leave them. When I was in India my mum called every day and asked when I was coming back. I help my mum a lot - I am also her friend as well as her daughter. She was very young when she married and my father was twice her age. I'm everything to her ...
I am 29 years old and I need my husband to come here as soon as possible so we can start living together and stabilise. I have wanted to have a baby for years but I haven't been able to because [the Applicant] is not here with me. I did not want to raise a baby by myself and we could not plan to have the baby without knowing [the Applicant] will get his visa. I need the father to be here with me. All my friends already have baby and I will be 30 soon, it's too much and so stressful.
Without my husband here, and thinking about him not getting a visa, it feels terrible. At the same time my mind sometimes puts it away that my husband is not here, but I always feel extremely lonely deep inside. Especially when I see my brother with his fiancé. I used to cry every night, especially when Covid stopped us seeing each other. I feel very, very sad all the time. This situation has been terrible for me. So many years we have been living with uncertainty and not being able to visit each other the last few. [The Applicant] is the same. Sometimes we talk on the phone and he just starts crying and apologising. All we can do is wait and pray.
I can't leave [the Applicant] as we are married and I don't want to. We love each other very much. He has to come to Australia. I can't think what will happen if he doesn't get his visa. My life will be meaningless.
165. The Review Applicant has recently been prescribed Fluoxetrine, an antidepressant used to treat major depressive disorder. It is clear that she cannot fathom moving to India if the Review Applicant is unable to enter and remain in Australia, and that the past five years have been emotionally, practically and financially distressing for her.
166. The Review Applicant will be significantly negatively affected if the Tribunal affirms the Decision and this should weigh significantly in favour of setting the Decision aside.
[Visa Applicant’s younger brother] JZ
167. The Review Applicant's brother JZ is a 24-year-old Australian citizen with severe autism spectrum disorder (ASD). The Review Applicant explains that the Visa Applicant provides him with practical support and that this has been a noticeable absence in JZ's life since 2017.
168. The Review Applicant stated in September 2020:
[The Visa Applicant] takes very good care my younger brother JZ who is 23 and has Autism. Whenever [the Visa Applicant] is home, [h]e does personal care like showering, toileting, taking him to [the] park for a walk, playing with him, feeding his meals on time.
169. She states further:
JZ has severe Autism. He is non verbal and cannot share his feelings, emotions or tell us if he is in pain. He needs help with everything, all the time - showering, dressing, feeding and going out of the house. I am the next of kin for JZ in his Centrelink and NDIS - all the communications come through me on behalf of my parents as they don't speak English well or read or write well. JZ doesn't understand anything. His body is grown up but his brain is like a baby. He has very high care needs. My mum is the # 1 carer for him and my brothers help on and off. I take care of JZ to give my mum a break because she deserves to go out as well, it's too much for her to do by herself. She also takes care of DZ. My dad lives in another house.
170. The impact the decision would have on the Review Applicant and JZ (and the Review Applicant's other brothers and mother) is a significant factor weighing heavily in favour of setting aside the Decision.
Positive contributions to the Australian community
171. Prior to returning to India to comply with his visa conditions, the Visa Applicant lived, worked and studied in the Australian community for eight years. During this time he contributed positively through his employment including his role as assistant manager at McDonalds... While working at McDonalds the Visa Applicant completed various courses and was awarded an Outstanding Assistant Manager award.
172. Ms Celestine Ariana GAUCI worked with the Visa Applicant as McDonalds... She stated in August 2020:
I have always thought of [the Visa Applicant] to be a respectable person and have always valued our relationship as close friends outside of work. At work, [the Visa Applicant] was always professional and performed his manager duties on shift above expectations. As per my observation and part of his job, he is required to do cash deposits of high amounts on a daily basis. He has worked in a position of very high responsibility during his service at McDonald's and his career.
The absolute unfortunate has happened with [the Visa Applicant] for which he regrets and immensely sorry of his mistakes still date. However, I do not see any reason that any such offenses like the one at BP in 2011 or any further driving offences could ever occur in future. Being an assistant manager, [the Visa Applicant] has helped …Police on several occasions by providing CCTV footages of McDonalds store on their request to assist them with any inquiries they have in any matter.
173. Further, he provided assistance with IT to other members of the community. Mr Damien MEENAN (Mr Meenan) stated in August 2020:
[The Visa Applicant] is a man with many talents and his work is admirable to the Australian community as he puts enormous effort in whatever he does to get it finalised. Since the time I have known [the Visa Applicant] I have never felt he would do anything wrong nor his conduct has harmed me or my business in any way. He is the person I trust fully with all matters of my business. Since he is managing and providing Onsite and Remote IT services from 2013, he has access to our confidential Business tenders, emails. He also takes care of all renewals without me having to worry about anything. Recently, for my new business we are running Facebook ads and I trust him enough to send a picture of my debit card and let him manage the payments of ads etc.
174. Mr Meenan's business partner Mr Ian John RODHAM stated in August 2020:
I have known [the Visa Applicant] since the opening of my new company in 2018 through my business partner when I was referred to him for the setup of business emails and cloud storage.
Since then he takes very good care of our day to day business essentials and always a phone call away with any assistance we require for our business. [The Visa Applicant]'s excellence in his work helps our business with upto date technology. He is brilliant and explains thoroughly of using tools and technology. Recently, he made a stunning website for our business to portray our work and keep online presence. His work has been great over the years benefiting the Australian community in numerous ways. We do not need to look at his past to see his present and future work for us. He has earned our trust with his good work and surely do not see any hint of any criminal intention in future. As a result of his recent disclosure puts no effect in our future business dealings with him.
175. Commenting on the Visa Applicant's contributions to the Australian community, Mr Nitai DEY stated in August 2020:
Undoubtedly, [the Visa Applicant] has made numerous contributions to the Australian Community like serving meals in temple, as we have a non profit food for life Govinda's restaurant in North Bridge Perth he has done services on his off days where he serves meals and also helps in cleaning the dishes, utensils, mopping floors etc. He is smart, intelligent and very helpful nature. He has helped my wife on several occasions in learning English as she was a migrant at the time from India. He has great influence on my daughter as [the Visa Applicant] knows her since she was just born. He has blessings from his parents and our religious beliefs. His good work will continue and to the very best of my knowledge he has proved it by not committing any such offense like the one at BP. He has a wonderful life ahead among the Australian community.
176. The Visa Applicant has strong ties to Australia which are of a substantial duration. His wife and her immediate family will all suffer practical, emotional and financial hardship if he is not granted a visa to return to Australia. Further, the Australian community would miss out on the positive contributions the Visa Applicant has to offer.
(Footnotes removed.)
The Respondent made the following submissions on this other consideration:[59]
54. The Tribunal should first consider the impact a refusal decision would have on the applicant’s immediate family members in Australia (paragraph 9.4.1(1) of Direction 90), namely his wife. The Minister accepts that a refusal decision would impact her.
55. The Tribunal should next consider the applicant’s length of residence in this country (paragraph 9.4.1(2)(a) of Direction 90). He has previously lived in Australia for approximately 8 years however did not arrive as a young child. Although the applicant has contributed to the Australian community (by way of employment) less weight should be given to this limb in circumstances where he offended soon after arriving and used his employment at the time to commit offences.
56. Separately from the above assessment concerning the length of time the applicant has resided in Australia, the Tribunal must also assess the strength, nature and duration of any family or social links the applicant has with Australian citizens or permanent residents (paragraph 9.4.1(2)(b) of Direction 90). The applicant has provided limited evidence from friends and extended family.
57. The Minister contends that any weight to be placed on this consideration should be minimal and that it does not outweigh the combined weight the Tribunal should give to the primary considerations weighing in favour of refusal.
[59] Exhibit R2, 13.
I find that the Applicant has made, and continues to make, a positive contribution to the Australian community. This is clearly stated by all of his character witnesses. Each one of these witnesses are firm in their conviction and agreed in their testimony that they have found the Applicant to be an agreeable companion, a thoughtful neighbour and a trustworthy and positive employee. This evidence weighs in favour of revoking the Refusal Decision.
I further find that the person who clearly stands to be most harshly affected by the Refusal Decision is the Applicant’s spouse, the Visa Applicant. The Visa Applicant has experienced many stressful circumstances in her life and the toll that this must take on her cannot be underestimated. The Refusal Decision places her in a predicament that most people would struggle to adequately comprehend. It is impossible not to have sympathy with her in these circumstances at a purely human level. This consideration does weigh significantly in terms of considering the effect of the decision on links to the Australian Community.
I also acknowledge that the Applicant has played and continues to play a positive role within the framework of the Visa Applicant’s family of origin. Particularly in supporting with the care of the Visa Applicant’s younger brother, who is a person with disability. This is also clear demonstration of the Applicant’s very real and continuing links to the Australian community.
I acknowledge the clear preference of the Applicant’s principal client, expressed at the hearing for the Applicant, to be available to provide services for that business based in Australia.[60]
[60] Transcript, 16 June 2022; 122.
Notwithstanding the Respondent’s reliance on the Applicant’s relatively short period of residence in Australia and the fact that he was of full age when he committed the most serious of his criminal offending, I find that the effect of the Refusal Decision would be significant to the Applicant’s spouse, her family and their network of supports in the community in Australia.
I find that this consideration weighs in favour of revoking the Refusal Decision. Given the evidence discussed above, I find that moderate weight should be given to this consideration.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[61](Suleiman) and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[62]
[61](2018) 74 AAR 545.
[62](2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[63] At para [21] Wigney J cited para [23] of Colvin J’s judgment, which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[63][2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...
I adopt the approach directed by the above cases.
Primary Consideration 1
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in paras [46]–[90] above, the Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as real. Taking into account the significant harm that would be caused to the community if the Applicant were to reoffend and the likelihood of him reoffending, this consideration weighs against of the revocation of the Refusal Decision. Moderate weight should be given to this primary consideration.
Primary Consideration 2
Given that the Tribunal has found that the Applicant has not engaged in family violence, for the reasons set out at paras [91]–[92] above, the second primary consideration, family violence, has neutral weight against revocation of the Refusal Decision. Neutral weight should be given to this primary consideration.
Primary Consideration 3
For the reasons set out in paras [93]–[99] above, the third primary consideration, the best interests of minor children, weighs in favour of the revocation of the Refusal Decision. Slight weight should be given to this primary consideration.
Primary Consideration 4
For the reasons set out at [100]–[109] above, the fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the Refusal Decision. Moderate weight should be given to this primary consideration.
Other Considerations
International non-refoulement
For the reasons set out above in paras [111]–[114] as this is not a decision on return, it does not give rise to a non-refoulement obligation. The Tribunal has found above that this other consideration has a neutral weight in the context of the decision to revoke the Refusal Decision.
Extent of impediments
With respect to the consideration of the extent of impediments, the Tribunal has found at paras [115]-[118] above that, as this is not a decision on return, it does not give rise to any impediments in the relevant sense. The impact of this other consideration is therefore neutral with respect to the requirements of Direction 90.
Impact on victims
The consideration of the impact on victims as directed by para 9.3 of Direction 90, for the reasons set out above at para [119]-[121] the Tribunal finds that this other consideration does not arise and is therefore neutral with respect to the requirements of Direction 90.
Links to the Australian community
The consideration of the strength, nature and duration of the ties that the Applicant’s links to the Australian community weighs in favour of the revocation of the Refusal Decision. Based on the submissions of the parties, and having appropriate regard to the impact on Australian business interests if the non-citizen is not allowed to enter Australia, the Tribunal has found above that this other consideration weighs in favour of revoking the Refusal Decision. For the reasons set out above at paras [122]–[131], moderate weight should be given to this other consideration.
Conclusion
As noted by Deputy President Boyle in James and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[64] whether a consideration does or does not outweigh any other particular consideration (or considerations) is not the relevant test. In weighing the considerations, primary and other, the exercise is not one of comparing one against another, but rather of giving weight to each of the considerations and weighing them as a whole, those for and those against revocation and determining which have the greater weight in total, those for or those against revocation.
[64][2022] AATA 2390, [112].
Having weighed the relevant considerations in favour of the revocation of the Refusal Decision and the relevant considerations against the revocation of the Refusal Decision, the Tribunal finds that the considerations against revocation outweigh those in favour of revocation. Accordingly, the Tribunal finds that there is not another reason why the Reviewable Decision should be revoked.
decision
The Reviewable Decision, being the decision of a delegate of the Respondent dated 2 September 2021, to refuse the Applicant’s Partner (Temporary) (Class UF) and Partner (Residence) (Class BC) visa pursuant to 501(1) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 148 (one hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Dr C Huntly
.................[Sgd]..........................................
Associate
Dated: 1 March 2023
Date of hearing: 01, 03 March and 16 June 2022 Solicitors for the Applicant: Ms A Graziotti, Estrin Saul Lawyers Solicitors for the Respondent: Ms D Jones-Bolla, Sparke Helmore Lawyers
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