Case: Minister for Immigration &amp; Ethnic Affairs v Baker (1997) 73 FCR 187 
Outcome: applied
the ability to take such matters into account as 'past and present general conduct' (or indeed as 'past and present criminal conduct' for the purposes of s 501(6)(c)(i)) is dependent on a finding that conduct of that description has occurred. In Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 , a Full Court of this Court held that it was not necessary, for the purposes of taking such conduct into account, for it to have resulted in a conviction. However, the Full Court concluded at 194 that the forerunner of s 501(6)(c) was: '... concerned with a person's conduct either "general conduct" or conduct of a more particular kind, described as "criminal conduct". It is not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor's character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material: see the interesting note by B Robertson, "Criminal Allegations in Civil Cases" (1991) 107 LQR 194. ' In Baker the Full Court also held that the Tribunal may rely on both kinds of conduct (both criminal conduct and general conduct) in deciding whether a person fails the character test and need not anchor its decision in one of the matters mentioned in subparas (i) and (ii). A later amendment to the provisions has made this abundantly clear by the insertion of the words 'either or both of the following' in s 501(6)(c). Part 2 of Direction No 21 sets out the considerations to which decision-makers must have regard when, if the non-citizen does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia. Paragraph 2.2 provides: ' Weight of considerations 2.2 The Government is mindful of the need to balance a number of important factors in reaching a decision whether or not to refuse or cancel a visa. In making such a decision, a decision-maker should have regard to three primary considerations and a number of other considerations. The primary considerations are set out at paragraphs 2.3 2.16 and other considerations are set out at paragraphs 2.17 2.24. Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.' Reference was made to what Deane J said in Pochi at 685: '[T]he 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.' and to the Full Court in Baker , that 'satisfaction that criminal conduct has occurred will not be attained on slight material'. The Minister submitted that there is no basis to suggest that the Tribunal did not apply a standard of balance of probabilities. The real complaint, according to the Minister, appears to be that the Tribunal had regard to the housing department records and police intelligence reports when finding that the applicant failed the character test in s 501(6)(c). As the Tribunal found that the applicant failed the test in s 501(6)(a) any error in also finding that the applicant failed the test in s 501(6)(c) is irrelevant. In any case, there was no reason why the Tribunal could not have regard to the housing department records and police intelligence reports. As it noted, they indicated similar behaviour to that for which the applicant had been convicted: [156]. According to the Minister, there is no error in the Tribunal's statement at [168] [169] that a substantial number of similar reports from a wide variety of different sources detailing similar conduct increases the probability that the overall picture is true. This is perfectly rational reasoning in the circumstances of this case. The weight to be attributed to particular evidence was a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41 per Mason J. Given the nature of the applicant's convictions there was no reason why the Tribunal could not also have regard to other evidence of similar behaviour by the applicant when considering s 501(6)(c). In the circumstances of this case the Tribunal was not finding criminal conduct in the absence of a conviction on 'slight material' (as cautioned against in Baker at 194C), it was finding that the applicant failed to satisfy the character tests in s 501(6)(a) and (c) 'on the basis of the evidence': [169], which included the applicant's criminal convictions as well as the housing department records and police intelligence reports. As 'criminal conduct' and 'general conduct' are not a dichotomy and may overlap, the Minister submitted that it was perfectly appropriate for the Tribunal to consider both together: Wong v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2002] FCAFC 440 at [33] [35]. It might be otherwise if there were no convictions and there was a finding that the applicant failed to satisfy the character test under s 501(6)(c)(i) and (ii) by recourse only to the police intelligence reports and the housing department records. In that context, the caution that came out of Baker referred to in [82] above, that there should not be a finding of criminal conduct on 'slight material', may well be apt. But that is not this case. The only real issue in the context of this case was whether the Tribunal acted capriciously in taking into account conduct referred to in the police intelligence reports and the housing department records of a kind similar to the conduct which constituted offences for which the applicant had been convicted; Ngaronoa (Jacobson J) at [60]. Clearly it did not and, unsurprisingly, there was no suggestion or submission that it did. This ground cannot sustain the application for review. The applicant submitted that the Tribunal erred in finding that the applicant failed the character test under ss 501(6)(c)(i) and/or 501(6)(c)(ii) of the Act by taking into account the police intelligence reports and the housing department records concerning the applicant because in doing so it took into account irrelevant considerations. Those reports and records went into evidence; it was not articulated why the matters contained in them were irrelevant considerations to which the Tribunal could not have regard, particularly when they 'showed a continuing pattern of similar behaviour' (similar to the behaviour constituting the offences upon which the convictions were based) and 'paint a similar picture'. There is certainly no prohibition in the Act, express or implied, against taking such considerations into account. The weight to be attached to them is a different matter; it is a matter for the Tribunal, not for this Court on review of the Tribunal's decision. In my view, this ground has no merit and cannot sustain the application for review.