DXTG and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered the case of a 32-year-old citizen of Vietnam who had overstayed his visa and subsequently committed serious criminal offences. The applicant had arrived in Australia in 2011 and remained in the country unlawfully after his visitor visa expired. In 2015, he was convicted of theft, cultivating a commercial quantity of cannabis, and trafficking a drug of dependence, receiving a sentence of three years and six months imprisonment. Following his release, he was placed in immigration detention.

The Tribunal was required to determine two key issues: first, whether the applicant passed the character test as defined in section 501(6) of the Migration Act 1958 (Cth), and second, if he failed the character test, whether to exercise the discretion under section 501(1) of the Act to refuse his visa application. In considering the exercise of this discretion, the Tribunal was mandated to apply the principles outlined in Ministerial Direction No. 65.

The Tribunal found that the applicant failed the character test because he had a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. In exercising its discretion under section 501(1), the Tribunal applied Ministerial Direction No. 65, which requires consideration of the protection of the Australian community from criminal or other serious conduct. The Tribunal acknowledged the serious nature of the applicant's past offending and the significant risk his release could pose to the community. While recognising that granting the visa might serve the best interests of the applicant's Australian nieces and considering the potential impact of refusal on his family and his concerns about returning to Vietnam, the Tribunal concluded that the overall balance of considerations favoured refusing the visa.

Consequently, the Tribunal affirmed the decision under review, which was the refusal of the applicant's visa.