Broom and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by Ms Sophie Patricia Broom, acting on behalf of Mr Brian Hedley Thomas, to review a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse Mr Thomas a visitor visa. The core dispute revolved around whether Mr Thomas passed the character test as defined in section 501(6) of the Migration Act 1958 (Cth), and if not, whether the Minister's delegate should have exercised the discretion under section 501(1) of the Act to refuse the visa. The case was heard by Deputy President Boyle of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were twofold: firstly, whether Mr Thomas satisfied the character test, and secondly, if he did not, whether the discretion to refuse the visa under section 501(1) of the Act should be exercised. This second issue required the Tribunal to consider Direction 99, which provides guidance on the primary and other considerations for decision-makers when assessing whether to refuse a visa on character grounds, including the protection of the Australian community and the risk of further offending.

Deputy President Boyle reasoned that while Mr Thomas did not pass the character test due to convictions for offences related to child sexual material, the exercise of discretion under section 501(1) required a comprehensive weighing of factors. Applying Direction 99, the Tribunal considered the nature and seriousness of Mr Thomas's conduct, noting that his convictions were his only criminal record and did not involve a custodial sentence. Crucially, the Tribunal found that Mr Thomas presented an extremely low risk of offending and had significant links to the Australian community, having visited the country on numerous occasions over many years without incident. The Tribunal applied the principles from *CRNL v Minister for Immigration, Citizenship and Multicultural Affairs*, concluding that the discretion to refuse the visa should not be exercised.

The Tribunal set aside the delegate's decision to refuse the visa and substituted it with a decision not to refuse the grant of the visa under section 501(1) of the Act.