Section 501 Character Test
The series of questions to be determined is:
- Does the review applicant pass the character test?
- Should it exercise the discretion to refuse the visa?
Section 501(6)(d)(i) of the Migration Act defines the scope of the Tribunal’s review in this respect, whether the Tribunal is satisfied of the existence of “a risk that the applicant would engage in criminal conduct in Australia” should he or she were to remain in Australia. If (and only if) the Tribunal is satisfied that he does not (because there is a risk of further criminal conduct), the Tribunal would ask the second question.
Risk of re-offending
The conclusion as to “risk” in the decision under review may be based solely upon “alleged adverse conduct” and “alleged behaviour”. If so, the Tribunal must be careful not to treat mere allegations as being sufficient to establish that the underlying conduct has in fact taken place. The Tribunal is required to make findings, based upon a state of “reasonable satisfaction”, as to what actually occurred.
As made plain by the authorities, is not enough for the Tribunal not to accept the applicant’s denial of the criminal incidents. In Nafady v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, for example; the Minister concluded that Mr Nafady did not pass the character test on the basis of his “inability to exclude the possibility that [Mr Nafady] had in fact committed the charged offences of rape”. The decision was held to be vitiated on the grounds, inter alia, of irrationality and illogicality. The Court identified the following principles that apply to the level of satisfaction required of a decision-maker, such as this Tribunal; before it can make findings as to “foundational facts”:
- “satisfaction that a person does not pass the character test does require reasonable satisfaction that foundational facts for such a conclusion exist. The assent of reasonable satisfaction does require material reasonably admitting of such proof”
- “a suspicion” is insufficient: “in the face of competing material, reasoning as to a risk of engaging in future criminal conduct requires reasonable and rational findings that the foundational conduct occurred, more than what would engender a reasonable suspicion or even a reasonable belief as to the existence of such a risk”
- “it remains the case that reasonable satisfaction in administrative decision-making that past conduct has occurred requires more than speculation or inability to exclude a possibility that the conduct has occurred.”
The Court referred to the “enduring relevance” of this observation by Deane J (with whom Evatt J agreed) in Minister for Immigration & Ethnic Affairs v Pochi with respect to administrative findings that grave conduct had occurred:
In my view, the Tribunal was bound, as a matter of law, to act on the basis that any conduct alleged against Mr Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had. It seems to me that this conclusion follows, as a matter of law, from the authorities referred to and the reasoning advanced by the Tribunal to establish the proposition as a general principle to be observed by it as a matter of administrative practice.
Evident, intelligible and rational foundation
Even if it is open for the Tribunal to reach the requisite satisfaction that past conduct occurred, the analysis does not stop there. The Tribunal then conducts the forward-looking process of evaluating the risk of the applicant engaging in the future in criminal conduct in Australia; that evaluation also “must have an evident, intelligible and rational foundation.” Simply referring the nature of previous offences – the very matter which has triggered the need to evaluate the risk in the first place – is insufficient.
As to the level of risk required to satisfy the statutory test, Kerr J said in Sabharwal v Minister for Immigration & Border Protection that “a derisorily small possibility” is not sufficient. In that decision, Kerr J referred to the terms of the Explanatory Memorandum for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) at paragraph 46 of Schedule 1, which states that the “intention” of s 501(6)(d)(i) was 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.”
The approach of Kerr J is consistent with paragraphs 6(2)-(3) of Annex A of Direction No. 99 (G3.2, p 428) that:
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.
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.
This is a different direction to the one that applied at the time of the delegate’s decision. Direction No. 99 took effect on 3 March 2023, revoking and replacing old Direction No. 90. There are significant differences between the two Directions. Direction No. 99 marks a significant shift in emphasis in relation to the treatment of long-term residence in Australia. Under this Direction, the “strength, nature and duration of ties to Australia” (paragraph 8.3) becomes a primary consideration.
Of course, the best interests of minor children in Australia continue to be a primary consideration in Direction No. 99.
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