Aikon Mensah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This case involved an appeal by Mr. Michael Aikon Mensah against the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to refuse him a Partner (Temporary) (Class UK) visa. The refusal was based on Mr. Mensah failing to pass the character test due to having a substantial criminal record, specifically a conviction for assault and rape in Sweden. The matter was heard by W Frost M.

The primary legal issues before the Tribunal were whether Mr. Mensah passed the character test under subsection 501(6) of the *Migration Act 1958* (Cth), and if not, whether the Tribunal should exercise its discretion under subsection 501(1) of the Act to refuse to grant him the visa. This required a consideration of the factors outlined in Direction No. 79, including the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community, as well as other considerations such as the impact on family members and international non-refoulement obligations.

The Tribunal found that Mr. Mensah did not pass the character test due to his criminal record. However, in exercising its discretion under subsection 501(1), the Tribunal weighed the relevant considerations under Direction No. 79. It determined that while the protection of the Australian community and community expectations weighed in favour of refusal, the best interests of Mr. Mensah's minor child in Australia and the impact on his family members weighed strongly against refusal. The Tribunal concluded that these latter considerations, particularly the impact on his young daughter and the strong familial ties, outweighed the considerations favouring refusal, treating the impact on family members as a primary consideration in this specific case.

Consequently, the Tribunal set aside the original decision and substituted its own decision, declining to exercise the discretion to refuse to grant Mr. Aikon Mensah the visa.