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

The Administrative Appeals Tribunal (AAT) reviewed a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the applicant a Bridging Visa E. The applicant, a citizen of Vietnam, had applied for a Partner visa and, in connection with that application, sought the Bridging Visa E. The refusal was based on the applicant not passing the character test due to a substantial criminal record, specifically convictions for drug offences. The core dispute before the Tribunal was whether the applicant met the character test and, if not, whether the discretion under section 501(1) of the *Migration Act 1958* (Cth) should be exercised to refuse the visa.

The Tribunal was required to determine two key issues: first, whether the applicant satisfied the character test as defined in section 501(6) of the Act; and second, if he did not, whether the Tribunal should exercise its discretion under section 501(1) to refuse to grant the visa. In making this determination, the Tribunal was bound to consider Ministerial Direction No. 79, which outlines the primary considerations for such decisions, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community.

The Tribunal reasoned that the applicant did not pass the character test due to his conviction for serious drug offences, which constituted a substantial criminal record. Applying Ministerial Direction No. 79, the Tribunal considered the primary considerations. It found that the protection of the Australian community weighed heavily against granting the visa, given the seriousness of the drug offences and the potential risk of reoffending, particularly as the applicant had not demonstrated that his financial difficulties, which contributed to his offending, had been overcome. While acknowledging the best interests of the applicant's minor daughter, the Tribunal gave this consideration limited weight, noting that her mother provided her care and that electronic communication would remain possible. The Tribunal also found that the expectations of the Australian community weighed in favour of refusal, as the community expects non-citizens to obey Australian laws.

Ultimately, the Tribunal concluded that the factors did not support the favourable exercise of discretion to grant the visa. The primary considerations of community protection and community expectations weighed significantly against the applicant, and these were not outweighed by any factors in his favour. Consequently, the Tribunal affirmed the delegate's decision to refuse the Bridging Visa E.