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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse the Applicant a permanent partner visa. The Applicant had initially entered Australia on a student visa. The refusal was based on the Applicant failing to pass the character test due to a substantial criminal record, which included convictions for dangerous driving occasioning death and bodily harm, as well as subsequent offences for driving under the influence of alcohol and unlicensed driving. The Applicant had previously had his visa application refused, and this decision was affirmed by the Administrative Appeals Tribunal. However, the Federal Court of Australia subsequently quashed that decision due to jurisdictional error, specifically a failure to give proper consideration to the impact of separation on the Applicant's young daughter. The matter was remitted to the Tribunal for redetermination.

The Tribunal was required to determine two primary issues: first, whether the Applicant passed the character test as defined by section 501(6) of the Migration Act 1958 (Cth); and second, if the Applicant did not pass the character test, whether the Tribunal should exercise its discretion under section 501(1) of the Migration Act to refuse to grant the partner visa. The legislative framework provided that a person does not pass the character test if they have a substantial criminal record, which includes being sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment totalling 12 months or more. The Tribunal was also to consider Direction No 79, which outlines primary and other considerations relevant to such decisions, including the protection of the Australian community, the nature and seriousness of conduct, the risk of further offending, the best interests of minor children in Australia, community expectations, and the impact on family members and victims.

The Tribunal found that the Applicant did not pass the character test due to his substantial criminal record. In exercising its discretion under section 501(1), the Tribunal considered the primary considerations outlined in Direction No 79. It noted the seriousness of the Applicant's past criminal conduct, including offences involving death and serious injury, and the risk of further offending given his history of driving under the influence and unlicensed driving. The Tribunal also considered the best interests of the Applicant's minor children in Australia, the expectations of the Australian community, and the impact on family members. While acknowledging the impact of the COVID-19 pandemic, the Tribunal concluded that the protection of the Australian community from criminal or other serious conduct weighed heavily in favour of refusing the visa. Consequently, the Tribunal affirmed the decision to refuse the Applicant's permanent partner visa.