Chander (Migration)

This matter concerned an application for review of a decision by the delegate of the Minister for Immigration to refuse visas to the applicants, including the primary applicant and secondary applicants, under section 65 of the *Migration Act 1958* (Cth). The applicants had applied for an Other Family (Residence) (Class BU) visa, specifically a Subclass 836 (Carer visa), on 18 October 2013. The delegate's refusal was based on the secondary applicant, Mr Manmohan Chander, failing to meet Public Interest Criteria 4001, which relates to the character test. As one applicant failed to meet the criteria, all applications were refused.

The primary legal issue before the Tribunal was whether the secondary applicant, Mr Manmohan Chander, satisfied Public Interest Criteria 4001. This criterion was central to the visa grant, as the delegate's decision to refuse all visas hinged on Mr Chander's failure to meet the character requirements. The Tribunal noted a prior decision by the Migration Review Tribunal (MRT) on 27 August 2015, which had remitted the matter back to the Department with a direction that the applicant met the relevant visa clauses. However, a subsequent decision on 30 August 2016 refused the visa for Mr Chander on character grounds, leading to the refusal of visas for the other applicants on 31 August 2016.

The Tribunal reasoned that while the delegate had refused the visa on character grounds, the Administrative Appeals Tribunal (AAT) had previously set aside a decision to refuse Mr Chander's visa on character grounds on 22 November 2016, exercising the discretion under section 501(1) of the *Migration Act*. The AAT had concluded that the discretion to refuse the visa application on character grounds should not be exercised. The Tribunal further noted policy guidance indicating that if an applicant passes the character test, or if the delegate is not satisfied but decides not to refuse the visa under section 501, the application will be referred back to the processing officer, and the applicant will be deemed to have satisfied Public Interest Criteria 4001. Consequently, the Tribunal concluded that the matter should be remitted for reconsideration.