Dalenga Todorova and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision to refuse a visa to Ms Dalenga Todorova, made by the Minister for Home Affairs. The refusal was based on Ms Todorova failing to pass the character test due to serious criminal offending. The Administrative Appeals Tribunal was required to consider whether to exercise its residual discretion to not refuse the visa under section 501(1) of the *Migration Act 1958* (Cth), having regard to Ministerial Direction No. 79.

The Tribunal was tasked with determining the weight to be given to various considerations under Ministerial Direction No. 79, specifically the primary considerations of protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, including the applicant's remorse, rehabilitation, and the risk of reoffending.

The Tribunal reasoned that while the applicant demonstrated remorse, rehabilitation, and an extremely low risk of reoffending, the consideration of protecting the Australian community weighed slightly in favour of refusing the visa. Regarding the best interests of minor children, the Tribunal found no evidence of direct impact on the applicant's own minor children. However, it acknowledged evidence of potential adverse impact on the visa sponsor's nieces, aged 8 and 11, if the sponsor were to relocate outside Australia due to the visa refusal. The Tribunal was satisfied that such a relocation would significantly adversely impact the sponsor's close relationship with her nieces, who viewed her as a "mother type" figure. Despite this, the Tribunal ultimately found that the protection of the Australian community consideration was sufficiently weighty to favour refusal.