CQBW and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by the Minister's delegate to refuse the Applicant a Bridging E visa. The refusal was based on the Applicant failing to pass the character test under section 501(6)(a) of the *Migration Act 1958* (Cth) due to a substantial criminal record. The Applicant had been sentenced to eight years imprisonment for attempting to import commercial quantities of border-controlled drugs. The Tribunal was required to consider whether the discretion to refuse the visa should be exercised, taking into account non-refoulement obligations, harm, and hardship, and applying Direction No. 79.

The primary legal issue before the Tribunal was whether the discretion under section 501(1) of the Act should be exercised to refuse the Applicant a visa, given her failure to pass the character test. This involved assessing the seriousness of her offending conduct, the risk to the Australian community, and any countervailing factors such as harm and hardship. The Tribunal also had to consider the principles outlined in Direction No. 79, which guides decision-makers on the exercise of this discretion, particularly concerning individuals with criminal histories.

The Tribunal reasoned that despite a psychologist's assessment of a "VERY LOW" risk of reoffending, the Applicant's criminal conduct was serious. Direction No. 79 mandates a low tolerance for visa applicants who have engaged in criminal conduct, requiring decision-makers to give significant consideration to the nature and seriousness of the conduct and the risk to the community. The Tribunal found that the Applicant's conviction for attempting to import commercial quantities of drugs was a serious offence, and that the protection of the Australian community from criminal conduct was a primary consideration. The Tribunal concluded that the discretion to refuse the visa should be exercised in favour of refusing the application.

Consequently, the Tribunal affirmed the decision of the Minister's delegate to refuse the Applicant's application for a Bridging E visa.