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

This matter concerned an application for review of a decision to refuse a Partner (Temporary) (Class UK) and a Partner (Residence) (Class BS) visa. The applicant, a citizen of Lebanon who had been in Australia since 2007, failed to pass the character test under section 501(6)(d)(i) of the *Migration Act 1958* (Cth). The Administrative Appeals Tribunal, constituted by Theodore Tavoularis SM, had jurisdiction to review the delegate's decision.

The primary legal issue before the Tribunal was whether the discretion conferred by section 501(1) of the Act should be exercised to refuse to grant the visa to the applicant, given his failure to pass the character test. This required the Tribunal to consider the protection of the Australian community from harm, the nature and seriousness of the applicant's conduct to date, and the risk to the community should the applicant commit further offences. The Tribunal also had to weigh various factors outlined in the relevant Direction, including the seriousness of the offending, the frequency of offending, the cumulative effect of repeated offending, and the potential for rehabilitation.

In reaching its decision, the Tribunal considered the applicant's criminal history, which included drug offences. It also had regard to evidence from a forensic psychologist, who assessed the applicant as presenting with symptoms of elevated anxiety, a severe methamphetamine-use disorder, and a moderate cannabis-use disorder, though these were considered to be in remission in a controlled environment. The psychologist noted that while the applicant had developed some insight into his addiction, his ability to maintain abstinence in a community setting remained untested, and he would benefit from further counselling and education. The Tribunal found that while the applicant's past offending demonstrated a range of criminogenic factors, his progress in addressing these remained incomplete and/or untested.

Ultimately, the Tribunal determined that it would not exercise the power conferred by section 501(1) of the Act to refuse to grant the visa. The decision under review was set aside and substituted with a decision that the Tribunal did not exercise that power.