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

This matter concerned a review of a decision by the Minister for Immigration, Citizenship, and Multicultural Affairs to refuse to grant a visa to the Visa Applicant. The Review Applicant, the Visa Applicant's adult daughter and an Australian citizen, sought review of this decision in the Administrative Appeals Tribunal. The Visa Applicant had previously held a Contributory Partner visa which was cancelled due to providing a bogus Notarial Certificate and incorrect information regarding criminal convictions. Subsequently, the Visa Applicant applied for a Sponsored Parent visa, which was refused by a delegate of the Minister.

The Tribunal was required to determine two key issues: first, whether the Visa Applicant satisfied the character test, and second, if not, whether the Tribunal should exercise its discretion under section 501(1) of the *Migration Act 1958* (Cth) to refuse to grant the visa. In considering the exercise of this discretion, the Tribunal was bound by Ministerial Direction No. 90, which outlines factors to be taken into account, including the protection of the Australian community, the nature and seriousness of the offending conduct, the risk of reoffending, the best interests of minor children, community expectations, and the applicant's links to the Australian community.

The Tribunal found that the Visa Applicant's criminal offending, involving embezzlement of a significant sum of money over two years while holding a position of trust as General Manager, was serious and involved dishonesty. This conduct weighed in favour of refusing the visa. However, the Tribunal also considered other factors, including the Visa Applicant's remorse, the fact that he played an "assisting and minor role" in the offending, and that he received a "lenient and reduced punishment" from the Chinese court. Crucially, the Tribunal noted that the Visa Applicant was an offshore applicant and that the offending conduct occurred many years prior, with no subsequent criminal history.

Ultimately, the Tribunal determined that it should not exercise its discretion to refuse the Visa Applicant the Sponsored Parent visa. Accordingly, the Tribunal set aside the delegate's decision and remitted the matter for further consideration with a direction not to exercise the discretion to refuse the visa.