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

This matter concerned the review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse a Bridging Visa to the applicant, a citizen of Nigeria. The applicant had a substantial criminal record, including a conviction for attempting to possess a marketable quantity of heroin for which he was sentenced to over seven years imprisonment. The delegate had refused the visa under section 501(1) of the *Migration Act 1958* (Cth) on character grounds, finding the applicant failed the character test due to his substantial criminal record. The Tribunal was required to determine whether there was another reason to exercise the discretion to refuse the visa, considering Ministerial Direction No. 79.

The legal issues before the Tribunal included the proper application of Ministerial Direction No. 79, specifically the weight to be given to primary considerations such as the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The Tribunal also had to consider other relevant factors, including international non-refoulement obligations and the impact on family members. A key aspect of the determination involved assessing the applicant's criminal history, including a drug importation offence and a low-range drink-driving offence, and evaluating the evidence regarding his rehabilitation prospects and his relationships with his Australian citizen wife and his young children.

The Tribunal reasoned that while the applicant's criminal record and the community's expectations weighed against granting the visa, the best interests of his minor children were a significant factor favouring the grant. The Tribunal noted that a previous mandatory cancellation of the applicant's Partner visa had been revoked by a delegate, who was aware of his criminal history, suggesting that the delegate had already weighed these considerations. The Tribunal accorded substantial weight to the best interests of the children, finding that the impact of separation would be significant and that the applicant played a positive parental role. The Tribunal also considered the sentencing remarks of the judge in the drug offence, which noted the applicant's prior good character and reasonable prospects of rehabilitation with his wife's support.

The Tribunal set aside the delegate's decision to refuse the Bridging Visa and remitted the matter to the delegate for reconsideration according to law. This outcome indicated that, upon re-evaluation, the Tribunal found that the weight of considerations, particularly the best interests of the minor children, warranted a different outcome than the refusal of the visa.