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

The Administrative Appeals Tribunal (AAT) considered the case of Mr. Indika Liyanage Kekulandala and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The dispute arose from a delegate's decision to refuse Mr. Kekulandala a Partner visa under subsection 501(1) of the *Migration Act 1958* (Cth). The delegate was satisfied that Mr. Kekulandala did not pass the character test due to a risk that he would engage in criminal conduct in Australia, as per subsection 501(6)(d)(i) of the Act.

The AAT was required to determine two primary legal issues. Firstly, whether Mr. Kekulandala passed the character test, specifically whether there was a risk he would engage in criminal conduct in Australia. Secondly, in the alternative, if he did not pass the character test, whether the discretion to refuse the visa should be exercised in his favour, considering the factors outlined in Direction 79, including the protection of the Australian community, community expectations, international non-refoulement obligations, the impact on family members and victims, the extent of impediments if removed, and the strength, nature, and duration of his ties to Australia.

The Tribunal reasoned that Mr. Kekulandala did not pass the character test as defined by subsection 501(6)(d)(i) of the *Migration Act 1958*. However, it found that even if a risk of future criminal conduct existed, the discretion to refuse the visa should be exercised in his favour. This conclusion was reached after considering various factors, including Mr. Kekulandala's remorse, the context of his past offending, the absence of further criminal conduct since 2015, his engagement with mental health treatment, and the significant impact a refusal would have on his Australian citizen wife, for whom he is the primary carer. The Tribunal noted that the word "risk" in the relevant section is not qualified by adjectives such as "significant" or "substantial."

The Tribunal remitted the decision under review with directions, indicating that the visa should be granted.