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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a visa to the applicant. The applicant had previously been found to have protection obligations under s 36(2)(a) of the Migration Act 1958 (Cth). The delegate subsequently exercised the discretion under s 501(1) of the Act to refuse the visa on character grounds. The Administrative Appeals Tribunal was required to determine whether the applicant failed the character test under s 501(6)(a) and, if so, whether the discretion to refuse the visa should have been exercised.

The Tribunal was required to determine two primary legal issues. First, whether the applicant satisfied the character test, specifically whether he had a "substantial criminal record" as defined by s 501(7A) of the Act, which requires a person to have been sentenced to two or more terms of imprisonment totalling 12 months or more. Second, if the applicant failed the character test, whether the discretion under s 501(1) to refuse the grant of a visa should have been exercised in his favour, having regard to Ministerial Direction 90 and the various primary and other considerations outlined therein.

In relation to the first issue, the Tribunal found that the applicant had been convicted of two separate charges of indecent assault and had been sentenced to two terms of imprisonment, each of nine months, to be served concurrently. The Court Order Notice confirmed these were two separate sentences. Therefore, the Tribunal was satisfied that the applicant had a substantial criminal record and did not pass the character test. On the second issue, the Tribunal considered various factors, including the applicant's remorse, rehabilitation efforts, and the anomaly created by the sentencing structure which, while technically resulting in a substantial criminal record, involved conduct at the lower end of criminal offending that could have been charged or sentenced differently. The Tribunal concluded that while the applicant failed the character test, there were considerations that weighed in favour of a non-exercise of the discretion to refuse the visa.

Consequently, the Tribunal set aside the delegate's decision and substituted a decision to grant the applicant a visa.