Iloa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for a Subclass 100 Partner (Migrant) visa by a citizen of Samoa. The applicant's visa application had been refused by the delegate on the basis that the applicant failed to pass the character test due to having a substantial criminal record, specifically by reference to paragraph 7(c) of the relevant legislative instrument. The applicant's solicitor contended that a recent Federal Court of Australia Full Court decision, *Pearson v Minister for Home Affairs* [2022] FCAFC 203, was dispositive of the application, arguing that in light of *Pearson*, the delegate's finding under paragraph 7(c) was not open, and therefore the applicant passed the character test.

The legal issues before the Tribunal were whether the applicant passed the character test, and if so, what orders should follow. The respondent submitted that *Pearson* concerned mandatory cancellation decisions under subsection 501(3A) and was therefore distinguishable from the present case, which involved a refusal of a visa under subsection 501(1). The respondent further argued that the Tribunal was empowered to consider the matter de novo and could affirm the refusal by reference to paragraph 7(d) of the character provisions, even though this ground was not relied upon by the delegate. The parties agreed that if the Tribunal was satisfied the applicant passed the character test, the matter should be remitted to the delegate for further processing.

The Tribunal considered the submissions of both parties, including further written submissions from the respondent regarding *Pearson*. The Tribunal noted that the law in this area was in a state of flux. Ultimately, the Tribunal determined that the applicant should not bear the burden of legal uncertainty arising from the current state of the law. The Tribunal set aside the delegate's decision to refuse the visa and remitted the matter to the respondent for further processing.