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

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the refusal of a Return (Residence) (Class BB) visa to the Visa Applicant, who was offshore. The refusal was made by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Applicant, on behalf of the Visa Applicant, sought a review of this decision.

The Tribunal was required to determine two primary issues: first, whether the Visa Applicant satisfied the character test as defined in section 501(6) of the Migration Act 1958 (Cth); and second, if the Visa Applicant did not pass the character test, whether the discretion under section 501(1) of the Act should be exercised to refuse the visa. The delegate's decision was based on the Visa Applicant not satisfying the character test under section 501(6)(d)(i), which relates to the risk of engaging in criminal conduct in Australia.

The Tribunal considered extensive evidence, including the Visa Applicant's criminal history, his personal circumstances, and his rehabilitation efforts since his release from prison in 2015, such as his conversion to Christianity and engagement with a church community. The Tribunal noted that the delegate's decision was confined to the criterion in section 501(6)(d)(i). Having regard to the evidence presented, including the Visa Applicant's remorse and understanding of the consequences of offending, the Tribunal found that the Visa Applicant did not satisfy the character test. However, the Tribunal exercised its discretion under section 501(1) in favour of granting the visa, finding that the circumstances warranted a decision other than refusal. The matter was remitted to the Minister for reconsideration.