CBYQ and Minister for Immigration and Border Protection (Migration)

The Administrative Appeals Tribunal considered an application by CBYQ (the Applicant) to review the Minister for Immigration and Border Protection's decision to refuse his visa application. The Applicant sought to have the refusal decision set aside and the matter remitted for reconsideration.

The Tribunal was required to determine two primary legal issues. First, whether the Applicant satisfied the character test as defined in subsection 501(6) of the *Migration Act 1958* (Cth). Second, if the Applicant did not pass the character test, whether the discretion to refuse the visa should nonetheless be exercised.

In addressing the character test, the Tribunal considered the Applicant's past and present criminal conduct, general conduct, and the risk of future criminal conduct. While acknowledging the seriousness of domestic violence, the Tribunal found that the Applicant's conduct, including unlawful assault and breaches of a Family Violence Order, was at the less severe end of the spectrum and that no physical injury was inflicted. The Tribunal also considered the Applicant's period of unlawful residence in Australia, finding it not sufficiently serious to warrant refusal. Crucially, the Tribunal was satisfied, based on the Applicant's evidence and demeanour, that he had learned from his mistakes and posed no more than a minimal or remote risk of re-offending. Consequently, the Tribunal concluded that the Applicant passed the character test, meaning the discretion to refuse the visa did not arise.

The Tribunal set aside the delegate's decision and remitted the matter to the Minister for further consideration on the basis that the Applicant passed the character test at the date of the Tribunal's decision.