Davey and Minister for Home Affairs (Migration)

This proceeding concerned a review of the Minister for Home Affairs' decision to refuse the Applicant a Partner (Subclass 309) visa on character grounds. The Applicant, who first arrived in Australia in 2009 as a student, had applied for partner visas on two occasions. The second application, made offshore in 2015, was refused in 2018 by a delegate of the Minister under section 501(1) of the *Migration Act 1958* (Cth) after the Applicant was issued with a Notice of Intention to Consider Refusal. The Applicant remained in India while the review was conducted.

The Tribunal was required to determine whether the Applicant passed the character test, specifically whether there was a more than minimal or remote chance that the Applicant would reoffend, and consequently, whether the visa application should be refused. This involved a consideration of the Applicant's criminal history, which included convictions for false imprisonment and common law assault arising from an incident in 2009 where the Applicant detained a sex worker and threatened her. The Tribunal also had to weigh the primary and other considerations relevant to the exercise of discretion under section 501(1).

The Tribunal found that the Applicant did not pass the character test. However, upon a comprehensive weighing of all relevant considerations, including the Applicant's criminal history and the circumstances surrounding it, the Tribunal concluded that the preferable decision was not to refuse the visa on character grounds. The Tribunal set aside the delegate's decision and remitted the matter to the Respondent for reconsideration with a direction that the Applicant not be refused a visa under section 501(1) of the *Migration Act 1958*.