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

This matter concerned an application by JSWC, a Lebanese citizen, for review of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs' decision to refuse to grant him a visa under section 501(1) of the *Migration Act 1958* (Cth). The primary dispute revolved around whether JSWC met the character test and, if not, whether the Minister's delegate should have exercised the discretion not to refuse the visa. JSWC had been found to be owed protection due to his sexual orientation. The case was heard by Ms A E Burke AO, Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether JSWC possessed a substantial criminal record, and if so, whether the discretion under section 501(1) of the *Migration Act* should be exercised in his favour to grant the visa. This involved considering various factors outlined in Ministerial Direction No 99, including the protection of the Australian community from criminal conduct, the nature and seriousness of JSWC's past conduct, the risk of future offending, the strength and duration of his ties to Australia, and the best interests of his minor child. The Tribunal also had to weigh these primary considerations against other factors, such as the expectations of the Australian community and the legal consequences of the decision.

In its reasoning, the Tribunal acknowledged JSWC's substantial criminal record, which stemmed largely from a methylamphetamine addiction. However, it considered the seriousness of his offending to be at the lower end of the spectrum, with his most serious conviction for drug trafficking resulting in a sentence significantly below the maximum penalty. The Tribunal noted that JSWC's last offence occurred over five years prior to the hearing and that he had taken significant steps towards rehabilitation, including drug and alcohol counselling, Suboxone treatment, and engagement with mental health services. Expert evidence from a forensic psychiatrist indicated a low risk of relapse and reoffending. The Tribunal gave considerable weight to JSWC's low risk of future offending, his strong ties to Australia, and the best interests of his son, while giving less weight to family violence considerations and community expectations.

Ultimately, the Tribunal found that the nature and seriousness of JSWC's past offending, combined with his low risk of reoffending and the positive steps he had taken towards rehabilitation, weighed in favour of setting aside the delegate's decision. The Tribunal concluded that the discretion under section 501(1) should be exercised not to refuse the grant of JSWC's visa.