Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

Holloway v Minister for Immigration [2022] FCA 1126

Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1000

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; [2016] 241 FCR 461

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Morgan and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2822

Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR

Taufahema v Minister for Immigration and Citizenship [2010] FCA 328

Material may tend to show that a non-citizen may have engaged in criminal, inappropriate or otherwise harmful conduct if it indicates that he or she has been charged with an offence. The non-citizen need not be convicted of or charged with an offence before the Minister may lawfully have regard to the alleged conduct. Section 501 "is not confined to prohibiting the entry or presence in Australia of persons who have been convicted of criminal conduct": Ngaronoa v Minister for Immigration and Citizenship [2007] FCA 1565 at [51]- [53], [56], [58] per Jacobson J, affirmed on appeal: Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196; (2007) 244 ALR 119 at [11] per Bennett and Buchanan JJ (with whom Moore J agreed); see also SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [92] per Katzmann J and Parker v Minister for Immigration and Border Protection [2016] FCA 938 at [29]- [31] per Katzmann J.

1. The Tribunal notes that this consideration is a normative statement of the expectation of the Australian community that non-citizens who are not law abiding should not expect to hold a visa. And that the direction clearly articulates that acts of family violence, serious violence against women and minor children are identified as raising the kinds of character concerns that enliven the consideration, regardless of whether there is a measurable future risk of harm.
2. When considering this factor, the Tribunal notes the matter of LZGG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 107 where the Member observed:

By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law: Minister for Immigration and Border Protection v Stretto [2016] FCAFC 11; 237 FCR 1 at 5 [9]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 357 ALR 408 at 423 [59]. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.

(2007) 244 ALR 119

(2014) 225 FCR 424

(1985) 159 CLR 550