Hodson and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse Mr Shane Liam Hodson a Student (Temporary) (Class TU) visa. The applicant, a citizen of the United Kingdom, had a significant criminal history in the UK spanning from 1997 to 2013, including convictions for violent offences, drug offences, and traffic offences, resulting in multiple periods of imprisonment. The review was heard by T. Tavoularis SM.

The Tribunal was required to determine two primary issues: first, whether the applicant passed the "Character Test" as defined in section 501(6) of the Migration Act 1958 (Cth), and second, whether, having regard to the considerations in Ministerial Direction No. 65, the discretion under section 501(1) of the Act to refuse the visa should be exercised. In assessing the applicant's character, the Tribunal considered the nature and seriousness of his past conduct, including the frequency and cumulative effect of his offending, and the sentences imposed.

The Tribunal found that the applicant did not pass the character test due to his criminal offending, which included violent offences and assault on a constable, and a pattern of repeated offending. However, when considering the exercise of discretion under Ministerial Direction No. 65, the Tribunal weighed various factors. While international non-refoulement obligations were not relevant, the Tribunal acknowledged the significant adverse impact on the applicant's de facto partner and her children, as well as his mother, if he were removed from Australia. The Tribunal also noted that the applicant had commenced trade qualifications with the intention of establishing a business. Crucially, the Tribunal assessed the risk of future harm to the Australian community as low, concluding that this factor did not weigh heavily in favour of refusal.

Ultimately, the Tribunal determined that the consideration of the adverse impact on the applicant's family weighed heavily in favour of allowing him to remain in Australia. Consequently, the Tribunal decided not to exercise the discretion to refuse the visa, effectively setting aside the delegate's decision.