HRVD and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister for Home Affairs to refuse the Applicant, a citizen of India, a Partner (Residence) (Class BS) Visa under section 501(1) of the *Migration Act 1958*. The refusal was based on the Applicant failing the character test, specifically due to a risk of engaging in criminal conduct or harassing, molesting, intimidating, or stalking another person in Australia, as outlined in section 501(6)(d) of the Act.

The Tribunal was required to determine whether the Applicant passed the character test and, if not, whether to exercise the discretion to refuse the visa. This involved applying Direction No. 79, which mandates consideration of various factors, including the risk of reoffending, the best interests of any minor children in Australia, and the impact on immediate family. The Applicant's visa application had previously been refused and remitted, with a subsequent notice of intention to consider refusal issued before the final reviewable decision.

The Tribunal found that while there was a low risk of the Applicant reoffending, this residual risk still weighed against him. However, significant weight was given to the best interests of the Applicant's Australian citizen son, born in 2015. The Tribunal accepted evidence demonstrating a strong father-son relationship, the Applicant's dedication to fatherhood, and his crucial role in supporting his wife, who experienced mental health challenges. The Tribunal concluded that the Applicant had played and would continue to play a positive parental role, a factor that weighed heavily in favour of revoking the refusal decision.

The Tribunal set aside the reviewable decision and remitted the matter to the Department for reconsideration.