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

This matter concerned an application to the Administrative Appeals Tribunal for review of a delegate of the Minister's decision to refuse to grant the Applicant, a citizen of Iran, a Bridging E (Class WE) visa. The Applicant had a history of serious criminal offending, for which he had received a sentence of imprisonment of 12 months or more, meaning he did not pass the character test under section 501(6)(a) of the *Migration Act 1958* (Cth). The core dispute revolved around whether the Tribunal should exercise its discretion under section 501(1) of the Act to refuse to grant the visa, despite the Applicant failing the character test.

The Tribunal was required to determine two primary legal issues: first, whether the Applicant passed the character test as defined in section 501(6) of the Act; and second, if he did not pass the character test, whether the Tribunal should exercise its discretion under section 501(1) to refuse to grant the visa. This second issue involved considering the "Other considerations" outlined in Ministerial Direction 99, particularly in light of the High Court's decision in *NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs*.

The Tribunal found that the Applicant did not pass the character test due to his substantial criminal record, a fact conceded by the Applicant. The critical aspect of the reasoning concerned the application of Ministerial Direction 99, specifically paragraph 9.1 regarding the legal consequences of a decision. The Tribunal noted that the High Court's decision in *NZYQ* and the subsequent grant of Bridging (Removal Pending) visas to individuals within its scope fundamentally altered the premise upon which Direction 99 operated. In this case, the Applicant was already in the Australian community on a Bridging (Removal Pending) visa and would remain so regardless of the Tribunal's decision. Therefore, the legal consequences of the decision were significantly diminished, impacting the weight given to considerations under Direction 99. The Tribunal concluded that setting aside the refusal and substituting a decision not to refuse the Bridging E visa would allow the Applicant's Resolution of Status visa application to proceed, offering greater security and rights than his current visa status.

The Tribunal set aside the delegate's decision to refuse to grant the Bridging E (Class WE) visa and substituted a decision not to exercise the discretion to refuse the visa. This outcome meant the Applicant's application for a Resolution of Status visa would no longer be taken to have been refused under section 501F of the Act.