1935996 (Migration)

The Administrative Appeals Tribunal considered the case of a visa applicant seeking a Special Category (Temporary) (Class TY) Subclass 444 visa. The applicant's eligibility for this visa was contested due to their status as a 'behaviour concern non-citizen', stemming from a criminal history involving a past offence for which they were sentenced to imprisonment for at least one year. The core of the dispute revolved around whether the applicant met the criteria for the visa, particularly in light of this criminal history and a prior decision made at a ministerial level not to cancel their visa.

The Tribunal was required to determine if the applicant qualified as a 'behaviour concern non-citizen' under section 5 of the *Migration Act 1958* (Cth). Furthermore, the Tribunal had to assess whether the applicant met the requirements for a Special Category visa as outlined in section 32 of the Act and regulation 5.15A of the *Migration Regulations 1994* (Cth), considering the specific circumstances of their criminal conviction and the subsequent ministerial decision.

The Tribunal reasoned that while the applicant had a criminal history that would ordinarily classify them as a 'behaviour concern non-citizen', the specific provisions of regulation 5.15A(3) allowed for an exception. This exception applied where a person was a behaviour concern non-citizen solely due to a past conviction and imprisonment, but a ministerial decision had been made not to cancel their visa, and no new grounds for being a behaviour concern non-citizen had arisen since then. Applying this to the facts, the Tribunal found that the applicant was now eligible for the grant of the visa.

Consequently, the Tribunal remitted the decision under review for reconsideration and found that the applicant met the criteria under section 32(2) of the Act and regulation 5.15A.