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

This matter concerned an application by Mr C, a citizen of China, for a partner visa. The Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs had refused to grant the visa under section 501(1) of the Migration Act 1958 (Cth). Mr C appealed this decision to the Administrative Appeals Tribunal. The Tribunal was required to conduct a de novo hearing, meaning it had to consider the evidence afresh and make its own findings of fact and draw its own inferences, rather than simply reviewing the delegate's decision for error.

The primary legal issue before the Tribunal was whether Mr C satisfied the character requirements for the visa, particularly in light of his criminal history and ongoing serious charges. Specifically, the Tribunal had to re-exercise the discretion under section 501(1) of the Migration Act, applying Direction 90, which governs the exercise of this discretion. This involved assessing the risk Mr C posed to the Australian community and considering any mitigating factors.

The Tribunal found that Mr C had a significant criminal history, including convictions for drug trafficking offences for which he received a substantial prison sentence. At the time of the hearing, he also faced a serious charge in the District Court of South Australia for trafficking in a controlled drug. Despite these serious matters, the Tribunal noted that Mr C had formed a new relationship with Ms L, who was pregnant with his child, and that he had been released on parole in 2015. After considering all the evidence, including the ongoing criminal proceedings and Mr C's personal circumstances, the Tribunal decided to set aside the delegate's decision and substitute a decision that Mr C's application for a partner visa not be refused under section 501(1).