Amoorthum and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to refuse the Applicant a Skilled (Residence) (Class VB) Visa under section 501(1) of the Migration Act 1958. The refusal was based on character grounds. The Applicant, a citizen of Mauritius, had arrived in Australia in 2006 and was later granted a Skilled Graduate (Class VC) Visa in 2010. His application for the Skilled (Residence) (Class VB) Visa, which included his wife and children as dependents, was refused following his conviction in the Melbourne County Court in 2014 for stalking and making threats to inflict serious injury. The Applicant had been refused his visa on two prior occasions, leading to periods of immigration detention, before this current refusal.

The primary legal issues before the Tribunal were whether the Applicant passed the character test, specifically whether there was a more than remote or trivial chance of him reoffending, and consequently, whether his visa application should be refused. The Tribunal was also required to consider the best interests of the Applicant's four minor children, who were residing in Australia, in making its determination.

The Tribunal reasoned that, taking into account all the facts and the evidence of several independent and authoritative witnesses, there was a very low risk of the Applicant reoffending. This conclusion weighed in favour of the Applicant and supported setting aside the reviewable decision. The Tribunal accepted, based on the preponderance of evidence, that the Applicant had a strong and positive parental relationship with his children, despite his offending and periods of incarceration. The Tribunal also considered the evidence regarding the impact of a potential return to Mauritius on the Applicant's children, noting that a return would likely have a negative effect on their education and social well-being, particularly for his daughter Nelly, who was academically gifted and had a supportive circle of friends in Australia.

The Tribunal concluded that the Applicant did not pass the character test. However, it found that the best interests of the minor children were a significant factor. The Tribunal set aside the decision to refuse the visa and remitted the matter with a direction that the visa application should not be refused on character grounds.