CKMY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for a Child (Residence) (Class BT) visa, which had been refused under section 501(6)(d)(i) of the Migration Act 1958 (Cth) on the basis that the applicant did not pass the character test. The applicant had committed criminal offences both as a child and as an adult. The decision was made by Mrs J C Kelly of the Administrative Appeals Tribunal.

The Tribunal was required to determine three key issues: first, whether the criminal offences committed by the applicant as a child were relevant considerations in the assessment of his character; second, whether the applicant passed the character test; and third, if the applicant did not pass the character test, whether the discretion to refuse the visa application should be exercised. The relevance of offending as a child was complicated by the Federal Court's decision in *Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs* [2022] FCAFC 23, which held that certain convictions under state youth justice legislation were irrelevant considerations. The Tribunal accepted, for the purposes of the decision and without making a final determination, that the respondent's submissions distinguishing the present case from *Thornton* were correct, meaning the applicant's offending as a child was a relevant consideration.

The Tribunal considered the applicant's criminal history, which included adult convictions for possessing a prohibited drug, assaulting and intimidating police officers, and behaving in an offensive manner in a public place. Applying Ministerial Direction No. 90, the Tribunal weighed the primary considerations, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community, against other considerations such as international non-refoulement obligations, the extent of impediments if removed, and links to the Australian community. After considering these factors, the Tribunal concluded that the discretion to refuse the applicant's visa application should not be exercised.

Consequently, the Tribunal set aside the reviewable decision to refuse the applicant's visa application and, in substitution, decided not to exercise the discretion to refuse the application under section 501(1) of the Migration Act 1958 (Cth).