DFHB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned the review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a Bridging E (Class WE) visa to the applicant, DFHB. The refusal was based on the applicant not passing the character test, as prescribed by section 501(1) of the *Migration Act 1958* (Cth). The case was heard by Mrs J C Kelly, Senior Member.

The primary legal issues before the Tribunal were: (a) whether the delegate's decision to refuse the visa was reviewable; (b) if reviewable, whether the applicant passed the character test, specifically concerning whether he had a substantial criminal record due to a sentence of imprisonment of 12 months or more; and (c) if the applicant did not pass the character test, whether the discretion under section 501(1) of the Act should be exercised to refuse the visa.

The Tribunal considered Ministerial Direction No. 99, which mandates that information from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although other considerations are not necessarily secondary in all cases. The Tribunal noted that the applicant's first criminal offence in 2018 resulted in a dismissal under section 10 of the CSP Act and was given no weight. The offending that formed the substantive subject of the decision commenced in mid-2020, with the applicant's partner or her new boyfriend being the victim in most instances. The applicant's first conviction was on 12 April 2021 for common assault (domestic violence), for which he received an 18-month Community Correction Order. The Tribunal found that the delegate's decision was reviewable, and that the applicant did not pass the character test as he had not been sentenced to a term of imprisonment of 12 months or more.

The Tribunal set aside the delegate's decision.