Dunkley and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for a Visitor visa by AD, a New Zealand citizen, who had been convicted in 2011 of six counts of possession of objectionable publication. The Minister's delegate refused to grant the visa on the basis that AD did not pass the character test under section 501 of the *Migration Act 1958* (Cth). AD's wife, GD, who is an Australian citizen, sought review of this decision in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the discretion to refuse the visa under section 501(1) of the *Migration Act* should be exercised, having regard to the considerations outlined in Direction 79. Specifically, the Tribunal needed to assess whether the factors weighed in favour of refusing the visa, particularly concerning the protection of the Australian community and the best interests of the children.

The Tribunal reasoned that while AD's offending, which involved accessing pornographic images, was serious and involved a sexual element, it was not violent and did not involve children. The Tribunal noted that AD had disclosed his offending, had undertaken rehabilitation programs, and had maintained a low risk profile. Furthermore, the Tribunal considered the strong ties AD had to Australia through his Australian citizen wife and children, and the potential negative impact on the family if the visa were refused. The Tribunal concluded that the discretion to refuse the visa should not be exercised.

The Tribunal set aside the delegate's decision and remitted the matter to the Minister for reconsideration, with a direction that the discretion under section 501(1) of the *Migration Act* be exercised in favour of AD.