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

The Administrative Appeals Tribunal considered the case of HMYH, a citizen of India, and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. HMYH had applied for a visa to remain in Australia, but his application was subject to refusal due to his criminal convictions. The dispute centred on whether HMYH met the character requirements for a visa and, if not, whether the discretion to refuse his application should be exercised.

The Tribunal was required to determine two primary legal issues. First, whether HMYH satisfied the character test as defined by the Migration Act 1958 (Cth). Second, if HMYH did not pass the character test, whether the discretion to refuse his visa application should be exercised, taking into account the considerations outlined in Part B of Ministerial Direction No. 79, and applying them to the specific circumstances of his case.

In its reasoning, the Tribunal applied the principles established in *Akpata v Minister for Immigration & Multicultural & Indigenous Affairs* [2004] FCAFC 65, which clarified that the character test is intended to exclude individuals with a history of criminal conduct or a risk of engaging in such conduct. The Tribunal noted that the current Ministerial Direction requires evidence suggesting more than a minimal or remote chance of future criminal conduct for the relevant ground to be enlivened. The Tribunal considered extensive evidence, including HMYH's criminal convictions for threatening to distribute an invasive image and failing to comply with bail, as well as numerous certificates of completion for various programs such as anger management and conflict resolution, character references, and reports from a clinical and forensic psychologist. Ultimately, the Tribunal concluded that the primary considerations of protecting the Australian community and community expectations substantially outweighed the factors favouring HMYH's application. The Tribunal affirmed the decision under review.