Haque and Minister for Home Affairs (Migration)

This matter concerned an appeal by Mr Haque against the Minister for Home Affairs' decision to refuse his application for a permanent visa. The refusal was based on Mr Haque failing to satisfy the character test under section 501(1) of the *Migration Act 1958* (Cth), following a criminal conviction for dishonestly obtaining a financial advantage by deception. The Administrative Appeals Tribunal (AAT) was required to conduct a merits review of this decision.

The primary legal issues before the Tribunal were whether Mr Haque met the character test, and if not, whether the Minister's decision to refuse the visa was the correct and preferable one. This involved considering the provisions of Ministerial Direction No. 65, which mandates that decision-makers have regard to primary considerations including the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community, as well as other considerations such as the impact on family.

The Tribunal reasoned that while the Minister's delegate had concluded there was a risk of Mr Haque reoffending, this conclusion was not binding. The Tribunal affirmed its independent role as a merits review body, obligated to reach the correct and preferable decision based on the material before it. Applying Ministerial Direction No. 65, the Tribunal found that the risk of Mr Haque reoffending was minimal, and therefore, the primary consideration of protecting the Australian community did not weigh heavily against granting the visa. The Tribunal also considered other factors, including the impact on Mr Haque's family.

Ultimately, the Tribunal determined that the Minister's decision to refuse the visa was not the correct or preferable decision. The Tribunal set aside the delegate's decision and remitted the matter to the Minister for reconsideration, indicating that the visa should be granted.