BNVM and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for a Bridging E (Class WE) visa by BNVM, a citizen of India, following the refusal of his partner visa applications and the cancellation of his student visa due to criminal convictions. The Minister for Immigration and Border Protection refused to grant the bridging visa, a decision that BNVM sought to have reviewed by the Administrative Appeals Tribunal. The Tribunal was required to determine whether BNVM passed the character test and, if not, whether to exercise its discretion to refuse the visa application under Ministerial Direction No 65.

The primary legal issues before the Tribunal were whether BNVM satisfied the "character test" as defined in section 501(6) of the *Migration Act 1958* (Cth), and if he did not, whether the discretion to refuse the bridging visa should be exercised in accordance with Ministerial Direction No 65. The character test is failed if a court has convicted the person of one or more sexually based offences involving a child. Direction No 65 provides guidance on the exercise of discretion when a person does not pass the character test, requiring consideration of primary and other relevant considerations, including the protection of the Australian community and the expectation of the Australian community.

The Tribunal found that BNVM did not pass the character test, as he had been convicted in the District Court of South Australia of unlawful sexual intercourse with a person under the age of 17. This conviction constituted a sexually based offence involving a minor. Having established that BNVM failed the character test, the Tribunal then considered the exercise of its discretion under Direction No 65. After reviewing all primary and other relevant considerations, including the impact on victims and international non-refoulement obligations, the Tribunal concluded that the correct and preferable decision was to refuse to grant BNVM the bridging visa. Consequently, the Tribunal affirmed the decision under review.