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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse the Applicant's partner visa on character grounds. The Applicant had a substantial criminal record, having been convicted of cultivating a prohibited plant (commercial quantity of cannabis) and sentenced to one year and nine months imprisonment. Consequently, the delegate was satisfied that the Applicant did not pass the character test under section 501(6)(a) of the *Migration Act 1958* (Cth).

The Tribunal was required to determine whether the Applicant passed the character test and, if not, whether the discretion under subsection 501(1) of the Act to refuse the visa should be exercised. In considering the exercise of this discretion, the Tribunal was directed to have regard to Direction 90, which outlines primary considerations including the protection of the Australian community from criminal or other serious conduct, family violence, and the best interests of minor children.

The Tribunal found that the Applicant did not pass the character test due to his substantial criminal record. While acknowledging the seriousness of the offence, the Tribunal considered the Applicant's age at the time of the offending, the salutary effect of his imprisonment and detention, and the impact of his offending on his wife's health as factors that reduced the likelihood of reoffending. However, the Tribunal also noted continuing inconsistencies in the Applicant's account of his offending, which provided some cause for concern. Despite these concerns, the Tribunal concluded that the primary consideration of protecting the Australian community weighed strongly in favour of refusing the visa. The Tribunal also considered the absence of family violence and the fact that the Applicant was not the father of any minor children.

On 8 February 2023, the Tribunal set aside the delegate's decision and remitted the matter to the Respondent for reconsideration, with a direction that the visa not be refused on character grounds under section 501 of the Act.