MIGRATION - decision of delegate of Minister to refuse Working Holiday (Temporary) (Class TZ) visa under section 501(1) of the Migration Act 1958 - character test - risk in regards to future conduct - risk that the person would engage in criminal conduct in Australia - Direction No 110 Annex A - level of probability of engaging in criminal conduct so low it may aptly be described as minimal, remote, trivial, derisorily small, so low that for practical purposes it may safely be disregarded - satisfied no risk - satisfied passes character test - decision set aside

Migration Act 1958

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

QKVH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4431

Explanatory Memorandum: Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth)

The Tribunal decided the review and handed down a statement of decision on 29 April 2025, indicating that the parties will be provided with a statement of reasons for the Tribunal's decision within a reasonable time from decision. This is the statement of reasons referred to.

1. Mr Ryan has been convicted of an assault occasioning actual bodily harm on 6 January 2021. Mr Ryan's application for a Working Holiday (Temporary) (Class TZ) visa was refused under the character provisions of the Migration Act 1958 (the Act) because the delegate considered that if Mr Ryan were allowed to enter or remain in Australia, there is a risk that he would engage in criminal conduct in Australia, and so he did not pass the character test. The delegate then proceeded to exercise discretion to refuse the grant of the visa, taking into account the matters provided for in Ministerial Direction 110.
2. I have decided that the evidence establishes no more than a minimal or remote chance that Mr Ryan would again engage in criminal conduct in Australia, and I have found that there is not therefore relevantly a risk that he would do so. As no other basis or ground is raised to put in question whether Mr Ryan passes the character test, Mr Ryan has satisfied me that he passes the character test.
3. I have therefore set aside the decision under review, and remitted the visa application back to the Minister's Department for reconsideration with a direction to the effect that Mr Ryan passes the character test.

1. Mr Ryan is a citizen of the United Kingdom. He entered Australia on 10 December 2019 as the holder of a Working Holiday (Temporary) (Class TZ) visa, and applied for a second such visa on 9 December 2020.
2. On 6 January 2021, Mr Ryan was dealt with in the Brisbane Magistrates Court for a single charge of assault occasioning actual bodily harm. Mr Ryan pleaded guilty, was convicted, and sentenced to six months imprisonment which was wholly suspended for 12 months. Mr Ryan tells me, and I accept in the absence of evidence to the contrary, that this is the only criminal conviction he has.
3. The events leading to the conviction took place on 8 August 2020, just after midnight. Mr Ryan's evidence of the circumstances of the offence was that he was very drunk, having consumed about 15 standard drinks. Judge Gardiner recounts the circumstances of the offending as follows:

...you were at a restaurant in The Valley. You had a conversation with the victim. He appeared to approach a table that had been reserved for you and two of your friends. He commenced talking to you and at some stage put his arm around you and your friend.

You stood up and pushed him and when he was - approached you, you headbutted him and hit him with a closed fist to his stomach. The headbutt caused a fracture in two separate places to his nose that required him to be hospitalised and treated in surgery. The victim was a German backpacker...

What you did was serious because of the extent of the injuries that you caused this gentleman to suffer for what seemed to be no apparent reason...The violence, in my view, is gratuitous and completely unjustified.

1. Mr Ryan departed Australia on 16 March 2023, and returned on 14 June 2023. His travel to and presence in Australia was authorised by a bridging visa. On 8 May 2024, Mr Ryan was notified that the Department of Home Affairs was considering refusing his visa on character grounds. Mr Ryan was notified again on 30 May 2024, with further information regarding possible visa refusal provided to him on 27 June 2024.
2. On 17 February 2025, the Department decided to refuse the visa. As a consequence, Mr Ryan's Bridging visa was taken to be cancelled, and he was taken into immigration detention.
3. On 20 February 2025, Mr Ryan applied to the Tribunal for review. A hearing of the application for review proceeded on 28 April 2025.

1. Under subsection 501(1) of the Act, 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.
2. The issues before the Tribunal are therefore:

(a) whether Mr Ryan passes the character test; and > > (b) (if Mr Ryan does not pass the character test), whether the discretion to refuse the visa should be exercised.

1. The character test is defined in subsection 501(6) of the Act. The only relevant ground on which the Minister relies is provided for at paragraph 501(6)(d)(i) of the Act. It provides that a person does not pass the character test if, in the event that the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.
2. Under subsection 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (s 499(2A)).
3. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction'). The Tribunal must comply with the Direction. Annex A to the Direction deals with the application of the character test, and section 6 of Annex A deals with risk in regards to future conduct as provided for by section 501(6)(d) of the Act:

(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) 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.

1. In QKVH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4431, the Administrative Appeals Tribunal (DP Britten-Jones) neatly summarised the relevant jurisprudence regarding what was described as the forward-looking process to evaluate the risk of a person engaging in the future in criminal conduct in Australia.[1] The Tribunal cited Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 in which the High Court observed:

[574] The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

1. Kerr J observed of Guo in Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10 that:

Their Honours' observations about the task that must be undertaken by a decision maker required to evaluate whether something may or may not occur in the future are not limited to the context in which they arose. They are timeless.

Counsel for the Minister properly acknowledged that the terms of the Explanatory Memorandum (the EM) for the Migration Amendment (Character and General Visa Cancellation) Bill 2014 (Cth) which amended s 501(6)(d)(i) must be relevant to the task of construction. Paragraph 46 of Sch 1 of the EM states that the "intention" of the provision 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."

Thus a derisorily small possibility would and could not satisfy the statutory test. However something that is "likely" to occur plainly would be within its terms.

The resolution of Ground 1A does not require the Court to identify more precisely where along the continuum of possibility that "a risk" would sit, as discussed in Guo_..._

1. I proceed therefore on the basis that my evaluative task in this regard is to determine, by engaging with the evidence before me, the level of probability that Mr Ryan will engage in criminal conduct in Australia with a view to identifying whether the probability is so low it may aptly be described as minimal or remote, or perhaps trivial or derisorily small, or at least so low that for practical purposes it may safely be disregarded. I consider that any assessment arriving at a higher level of probability where such terminology is inapt, will identify a risk for the purposes of paragraph 501(6)(d)(i) of the Act with a consequence that Mr Ryan would not satisfy me that he passes the character test.
2. The Respondent contends that there is more than a minimal likelihood that Mr Ryan would engage in further criminal conduct, pointing primarily to the feature of the offending that it appeared to take place for no apparent reason. It is submitted that because the applicant cannot adequately explain the reason for his offending, he has taken few steps to address the cause. The Respondent submits that Mr Ryan's escalation so quickly to using substantial force against the victim is a matter which given rise to considerable concern about Mr Ryan's judgment, and that combined with inadequate addressing of factors which contributed to the offending is a cause for significant concern that the applicant would engage in criminal conduct.
3. I have taken into account the fact that the offending actually occurred, and the nature of that offending, mindful of both the observation of the High Court in Guo that past events are not a certain guide to future events, and the Direction itself recognises it is not sufficient to find that the person has engaged in conduct ... in the past. Nonetheless the Respondent contends that as a violent offence, I must view the offending as very serious. I accept that the offending, as violent offending, would clearly meet the description of a very serious offence in the context of an assessment of the nature and seriousness of the conduct in an assessment under clause 8.1.1 of Part 2 of the Direction. Furthermore, I note that the sentencing judge also recognised that the seriousness was demonstrated by the extent of the injuries caused to the victim. Having accepted that however, I have also taken into account that the Court saw fit to wholly suspend the sentence of imprisonment imposed.
4. In the context of a very serious offence, for the purpose of evaluating risk in the sense of probability, it is appropriate to consider very carefully the evidence identifying any factors that caused or contributed to the offending and assess whether they are still present in any way. I must also examine the evidence regarding any history of similar conduct, further such conduct or other evidence suggesting the conduct was in some way demonstrative of an inherent propensity towards violent conduct.
5. On Mr Ryan's evidence of the circumstances of the offence, which I accept, excessive alcohol and consequentially impaired judgment are clearly the factors central to the commission of the offence. I should note in this regard that the sentencing remarks, being the sentencing remarks of summary proceedings, are very brief and do not explore wider criminogenic factors, prospects of rehabilitation or indeed anything beyond the immediate events amounting to the offence.
6. Mr Ryan has provided further explanation, none of which is inconsistent with his acceptance that this conduct was serious, regrettable and inexcusable. In a safety plan which Mr Ryan developed after consulting his psychologist, Mr Ryan has described his emotions at the time of the offence as one of fear for his wellbeing, holding the belief at the time that the victim was going to start a fight with him. Mr Ryan accepted that his judgment of the situation was affected by alcohol and his response was completely disproportionate.
7. In his statement, Mr Ryan said that he has had time to reflect on his conduct. He says his family and friends were shocked and disappointed, and the behaviour was completely out of character for him. He told me, in response to my questions, that violence did not form part of his upbringing, and he had not even played contact sports. In his statement, Mr Ryan said he is often described as easy-going and he had never been involved in physical or violent altercations before.
8. Mr Ryan's documented antecedents, of which there are none, corroborate this history. There is no evidence before me of any history of violence or conflict, or any subsequent repeat or escalating of offending that may give rise to a perception in my mind of an increased likelihood or propensity to engage in violent behaviour. On all the evidence before me I accept that the single incident resulting in the conviction was and is out of character. A feature of the statements and letters of support lodged by Mr Ryan in these proceedings is commentary from his friends, partner and employer that the offending was out of character, manifested in genuine remorse.
9. Indeed, the Respondent's contentions to the effect that there is a risk are grounded to some extent by the inexplicable nature of Mr Ryan's offending having regard to the absence of any antecedents or subsequent adverse conduct. Mr Ryan has undertaken a number of self-improvement courses while in immigration detention, including Alison certificate courses on Alcohol Dependence, Drug and Alcohol Awareness and Prevention and (on Mr Ryan's sworn evidence) also Anger Management. The circumstances as to why Mr Ryan saw a need to undertake these courses was explored in cross-examination, given there was otherwise no evidence of any underlying problem to be addressed. The timing of undertaking those courses well after the date of the offence was also raised in cross examination.
10. Similarly, Mr Ryan has undertaken some psychological treatment and assessment. Mr Bruce Hamilton, Forensic Psychologist, met with Mr Ryan in person in March and April 2024 after Mr Ryan was referred by his legal representative. In his report, Mr Hamilton says that the focus of the meeting was to explore the issues that precipitated the offence. Mr Hamilton found that Mr Ryan had openly explored the cognitions and attitudes that may have precipitated the offence (without Mr Hamilton documenting what they were) and was to independently develop a support and new future plan. Mr Hamilton concluded that he had not identified any future treatment needs with regards to a risk towards reoffending, but Mr Ryan was willing to seek support from his established support network and professional assistance as required.
11. The Respondent was correct to criticise the brevity of the report and the apparent absence of any psychometric testing addressing criminogenic traits or risk factors for repeat offending. Mr Hamilton was not required for cross examination. While those criticisms of the report are justified on the face of the report, they do not in my view establish that there is an unidentified psychological cause to Mr Ryan's offence or an as yet unidentified criminogenic factor at play. To the contrary, Mr Hamilton has identified no outstanding treatment needs, from which I infer there are no underlying criminogenic factors other than the obvious one being excessive alcohol consumption at the time of the offence. In relation to that, I infer that Mr Hamilton did not identify Mr Ryan to have a pathological relationship with alcohol requiring treatment.
12. As to excessive alcohol consumption, Mr Ryan has explained that he has developed strategies for reducing his alcohol consumption, essentially ceasing binge drinking. He explained that he had previously followed a lifestyle where excessive social drinking was routine, but he no longer engaged in that behaviour. He said he restricts himself to a single standard drink per hour, and no more than 5 standard drinks in total in any social occasion. Mr Ryan explained that he has found other recreational outlets in his life that are incompatible with his previous behaviours.
13. I found Mr Ryan's descriptions of his insights into his previous drinking behaviour to be convincing, and I found he presented his safety plan intelligently and consistently with the growing level of maturity he described. In this regard, I note that the offending occurred some 5 years ago when Mr Ryan was 22 years old, and Mr Ryan is now 26 years old. It is not unusual that a person's priorities and social behaviours may change profoundly between their early 20s and later 20s, and Mr Ryan's evidence of his own commitments to himself and changes to his behaviours are reflective of such development.
14. I accept as genuine Mr Ryan's reflections and commitments in this regard, and note again that Mr Hamilton did not identify any outstanding treatment needs, from which I infer Mr Hamilton identified no pathological aspects to Mr Ryan's use of alcohol.
15. Having regard to the circumstances of the single instance of offending and in particular the high degree of intoxication, the psychological evidence before me, the absence of any antecedents or subsequent adverse behaviour and Mr Ryan's capacity to intelligently and insightfully discuss his offence and the measures he has now taken to respond to what he perceives to be the cause of it, I am confident to make the following findings:
    • In the absence of very significant alcohol intoxication, there is no more than a minimal, remote, trivial or derisorily small chance that Mr Ryan would engage in conduct for which a criminal conviction could be recorded, and specifically conduct of a violent nature.
    • Mr Ryan's commitment to no longer engage in behaviours resulting in very significant alcohol intoxication is genuine, consistent with his maturity and not undermined by any psychological disorder requiring treatment. Mr Ryan will be successful in no longer engaging in any behaviours resulting in very significant alcohol intoxication.
16. The combination of these findings lead me to the relevant finding that the risk of Mr Ryan engaging in conduct for which a criminal conviction could be recorded, and specifically conduct of a violent nature, is no more than minimal, remote, trivial and derisorily small. I find that there is relevantly no risk (for the purposes of paragraph 501(6)(d)(i) of the Act) that Mr Ryan if allowed to enter or to remain in Australia, would engage in criminal conduct in Australia.
17. Mr Ryan has satisfied me that he passes the character test. The question of discretionary refusal of the visa under section 501 of the Act does not therefore arise.
18. As no other ground is asserted to put in question Mr Ryan's satisfaction of the character test the appropriate decision of the Tribunal therefore is to set aside the decision under review and remit the matter back to the Minister's Department with the order that Mr Ryan not be refused a grant of the visa under subsection 501(1) of the Act.

The Tribunal sets aside the decision under review and remits the matter for reconsideration in accordance with the order that the applicant not be refused a grant of the visa under subsection 501(1) of the Migration Act 1958.

[1] The Administrative Appeals Tribunal was considering the same legislation against the context of a previous iteration of the Ministerial Direction (Direction 79), that was substantially different in structure in relation the evaluation of risk of engaging in criminal conduct in Australia.