Bhardwaj and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse Mr Vishal Bhardwaj's application for a Regional Employer Nomination (Permanent) (Class RN) visa. The applicant, a citizen of India, had entered Australia in 2008 and lodged his visa application in 2015. The Minister's delegate refused the visa under section 501(1) of the Migration Act 1958 (Cth) on the grounds that the applicant did not pass the character test due to his criminal conduct. The applicant sought review of this decision by the Tribunal.

The Tribunal was required to determine two primary issues: first, whether the applicant passed the "Character Test" as defined in section 501(6) of the Act, and second, whether, having regard to the considerations in Ministerial Direction No. 65, the discretion under section 501(1) to refuse the visa should be exercised. The character test provisions relevant to the case included circumstances where a person is not of good character due to past or present criminal or general conduct, or where there is a risk of future criminal conduct or harassment.

In its reasoning, the Tribunal found that the applicant did not pass the character test based on his offending. However, when considering the exercise of discretion under Ministerial Direction No. 65, the Tribunal assessed the nature and seriousness of the applicant's conduct. It noted that while the applicant had convictions for dangerous operation of a motor vehicle, imposition, and breaches of a domestic violence order, his criminal record was not extensive relative to his age and time in Australia. The Tribunal also considered the penalties imposed, observing that custodial sentences were wholly suspended and that some offences resulted in no conviction being recorded. The Tribunal further examined other considerations under the Direction, including the impact on family members, finding that the applicant's closest relatives resided in Australia. It also considered the impact on Australian business interests, noting the applicant's importance to his employer.

Ultimately, the Tribunal concluded that while the applicant did not pass the character test, the totality of his offending and the context in which it occurred did not place him beneath the expectations of the Australian community. The Tribunal considered the applicant to be at a low risk of causing future harm. A holistic consideration of the factors weighed in favour of allowing the applicant to remain in Australia, and the Tribunal exercised its discretion to set aside the delegate's decision.