JNMK and Minister for Immigration and Border Protection (Migration)

The Administrative Appeals Tribunal considered an application by a Zambian citizen for a Partner (Migrant) visa, which had been refused by a delegate of the Minister for Immigration and Border Protection. The refusal was based on the applicant not passing the character test due to a substantial criminal record. The Tribunal was required to determine whether the applicant passed the character test and, if not, whether to exercise the discretion under section 501(1) of the Migration Act 1958 (Cth) to refuse the visa.

The applicant had been convicted of several offences, including exceeding the prescribed concentration of alcohol, driving without authority, dangerous driving occasioning death, and dangerous driving occasioning bodily harm. These convictions resulted in a total of 12 months' imprisonment, which were suspended, and significant driving licence disqualifications. The applicant conceded that he did not pass the character test due to having a substantial criminal record, as defined by the Act, which includes any person sentenced to two or more terms of imprisonment, even if suspended.

In considering the exercise of discretion under section 501(1), the Tribunal applied Direction 65, which outlines primary and other considerations. The primary considerations included the protection of the Australian community, the best interests of minor children in Australia, and the expectations of the Australian community. The Tribunal found that the protection of the Australian community weighed heavily in favour of refusing the visa, citing the nature and seriousness of the applicant's conduct and the risk of re-offending as posing an unacceptable risk. While the interests of the applicant's child favoured a grant of the visa, this was outweighed by the other primary considerations. The Tribunal also concluded that the expectations of the Australian community would be for the visa to be refused in these circumstances. The other considerations under Direction 65 were found to be significantly outweighed by the primary considerations.

Consequently, the Tribunal affirmed the decision under review, refusing to grant the applicant the visa.