Cao and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for a Bridging Visa by Mr Cao, who had been convicted of two charges of indecent act with a child under 16. The Minister's delegate refused to grant the Bridging Visa on character grounds, pursuant to section 501(6)(e) of the *Migration Act 1958* (Cth). The applicant sought review of this decision before the Administrative Appeals Tribunal (AAT).

The AAT was required to determine whether, despite Mr Cao failing the character test due to his convictions, the circumstances of the offending and other considerations warranted the grant of a Bridging Visa. Specifically, the Tribunal had to consider the relevance and application of Clause 12 of the Ministerial Direction No. 65, which outlines "other considerations" that may be relevant to visa applicants, including international non-refoulement obligations, impact on family members, impact on victims, and impact on Australian business interests. The Tribunal also needed to clarify the distinction between decisions reviewable by the Migration and Refugee Division (MRD) of the AAT and those reviewable by the General Division (GD) of the AAT, particularly concerning character-based refusals.

The Tribunal found that Mr Cao clearly failed the character test due to his convictions. However, it held that Clause 12 of the Ministerial Direction, which deals with visa applicants, should be interpreted as applying to decisions to refuse a visa, not just to cancel one. The Tribunal identified the impact on Mr Cao's wife and daughter as the only relevant "other consideration" under Clause 12, noting that while the victim's impact was relevant, no evidence was provided. The Tribunal considered the potential impact on the daughter's ability to study in Australia and the wife's ability to complete her PhD and pursue further research. Despite these considerations, the Tribunal concluded that the Australian community would expect Mr Cao's application to be refused given the circumstances of his offending. The Tribunal affirmed the delegate's decision to refuse the Bridging Visa.