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

This matter concerned an appeal by Engelina against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel her Skilled (Provisional) (Class VC) visa under subsection 501(2) of the Migration Act 1958 (Cth) on the grounds that she did not pass the character test due to having a substantial criminal record. The appeal was heard by Senior Member A Poljak.

The primary legal issues before the Tribunal were whether the discretion under section 501(1) of the Migration Act 1958 (Cth) should be exercised to refuse to grant the visa, and in doing so, to consider the mandatory considerations outlined in Ministerial Direction No. 99. Specifically, the Tribunal was required to assess the weight to be given to the protection of the Australian community from criminal or other serious conduct, and the best interests of minor children in Australia affected by the decision.

The Tribunal reasoned that while the applicant's offending conduct, involving dealing with property reasonably suspected of being proceeds of crime and resulting in a 12-month imprisonment sentence, was serious, the risk of reoffending was assessed as low. This primary consideration therefore weighed against exercising the discretion to refuse the visa. Furthermore, the Tribunal considered the best interests of the applicant's three-year-old daughter, Child A, who resided in Australia with both parents. The Tribunal found that while the daughter would not be separated from either parent if the applicant were returned to Indonesia, significant disadvantages would arise. These included potential discrimination due to the interfaith nature of the parents' marriage, which is not recognised in Indonesia, leading to Child A being considered 'illegitimate' with reduced legal protection. Additionally, concerns were raised about medical disadvantages regarding vaccine availability in Indonesia. The Tribunal also noted the bureaucratic difficulties and familial opposition the applicant's husband would face in registering their marriage in Indonesia, further impacting Child A's interests.

The Tribunal set aside the decision under review.