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

This matter concerned an appeal by a visa applicant, a citizen of the United Kingdom, against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant him a visa under section 501(1) of the *Migration Act 1958* (Cth). The refusal was based on the applicant failing to pass the character test, due to a prior conviction for causing serious injury by dangerous driving for which he received a suspended sentence of imprisonment of twelve and a half months. The Administrative Appeals Tribunal was required to determine whether the applicant passed the character test and, if not, whether there was another reason to exercise the discretion to grant the visa.

The primary legal issues before the Tribunal were twofold. Firstly, whether the visa applicant satisfied the character test as defined in section 501(6) of the Act, specifically in light of his conviction and sentence for dangerous driving. Secondly, if the applicant did not pass the character test, whether there was another compelling reason to exercise the discretion under section 501(1) of the Act to grant the visa, having regard to the framework established by Direction No. 79.

The Tribunal found that the visa applicant did not pass the character test, as he had been sentenced to a term of imprisonment of 12 months or more, albeit suspended. However, after considering all relevant factors under Direction No. 79, including the protection of the Australian community and other considerations, the Tribunal was satisfied that there was another reason why the decision to refuse the visa should be set aside. The Tribunal noted the specific circumstances of the dangerous driving offence, including the judge's remarks that the conduct was "only just over the line" into dangerous driving, and that the applicant had no prior convictions and had ceased driving heavy vehicles.

Consequently, the Tribunal set aside the decision under review and remitted the matter to the Department for redetermination.