Chand and Minister for Immigration and Border Protection (Migration)

Professor R Deutsch, Deputy President, of the Administrative Appeals Tribunal considered the application of Mr Chand for a partner visa, which had been refused by the Minister for Immigration and Border Protection on character grounds under section 501(1) of the *Migration Act 1958* (Cth). The refusal was based on Mr Chand failing to pass the character test due to a criminal conviction. The Tribunal was asked to review this decision.

The primary legal issue before the Tribunal was whether the Minister had correctly exercised the discretion under section 501(1) of the *Migration Act* to refuse the visa on character grounds. This involved assessing whether the protection of the Australian community, the expectations of the Australian community, and the potential impact on Mr Chand's family members were adequately considered, particularly in light of evidence suggesting Mr Chand was unlikely to re-offend and posed a low tolerable risk to the Australian community.

The Deputy President found that while the seriousness of the criminal offending was acknowledged, the assessment of risk to the Australian community had not been sufficiently nuanced. The Tribunal considered the applicant's prospects of re-offending, noting evidence that he was unlikely to repeat his criminal behaviour. Furthermore, the Tribunal gave significant weight to the adverse emotional and potential financial impacts that a visa refusal would have on Mr Chand's family members, who were Australian citizens. The Deputy President concluded that the decision to refuse the visa was affected by an error of law, specifically in the exercise of the discretion under section 501(1), and therefore set aside the original decision and remitted the matter for reconsideration.