Case: Goldie v Minister for Immigration and Multicultural Affairs 56 ALD 321
Outcome: cited
The Tribunal then referred to s 501 , saying: "The Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test." That statement is also unexceptionable. The question, however, is whether the Tribunal did, in fact, approach the exercise of discretion from the right direction. Doubt is cast on that matter by that part of the Tribunal's reasons in which it deals with the application of the law and findings of fact. The Tribunal repeats that the first issue for it to decide is whether, pursuant to ss 501(6)(a) and 501 (7), the applicant passes the character test, having regard to his substantial criminal record. The Tribunal observes, citing authority of the Full Federal Court, that the character test requires an objective consideration of the applicant's enduring moral qualities, but that that does not require the applicant to meet the highest standards of integrity. This issue is whether any deficiencies in his character are such that it is in the public good to refuse the visa (see Goldie v Minister for Immigration and Multicultural Affairs 56 ALD 321 at [8] and [24]). The Tribunal then went on to say that, on the other hand, despite the many good qualities possessed by a person, those qualities can be outweighed by a single adverse incident if it is of sufficient weight and seriousness. 25 The Tribunal then purports to state the second stage of its decision-making process, and says, relevantly, as follows: "Secondly, I am required to have regard to Part 1 of Direction 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(1) not to cancel the applicant's visa, notwithstanding that the applicant does not pass the character test. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion." 26 The Tribunal then observed that the applicant in the present case failed the character test because of his substantial criminal record, and observed that there were no mitigating circumstances, but that, on the contrary, the record was aggravated by the presence of offences committed while on bail. The Tribunal then said: "I must therefore consider whether to exercise my discretion under 501(2) to decide, nevertheless, whether not to cancel the applicant's visa. In exercising that discretion, the Tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations." 27 The Tribunal then went on to deal in some detail with each of the primary considerations that are set out in Direction No 21. After dealing with protection of the Australian community, the Tribunal said: "To set aside the decision under review in the case of an unrehabilitated offender with such a serious record during his eight years in Australia would, in my view, send entirely the wrong message to other non-citizens contemplating criminal behaviour." 28 At the end of the section dealing with the expectations of the Australian community the Tribunal said: "The community would be likely to take the view that there is a limit to how far further chances can be offered to a repeat offender, and the applicant has crossed it. Community expectations would clearly favour visa cancellation in this case." 29 The third primary consideration, the best interests of the child, has no relevance in the present case. After having regard to the other considerations that are specified in Direction No 21, the Tribunal concluded as follows: "The primary considerations of community protection and expectations outweigh the other considerations in this case. The decision under review is affirmed."