Khalil and Minister for Immigration and Border Protection (Migration)

The applicant, a citizen of Egypt, sought review of the Minister's decision to refuse him a visa on the grounds that he failed to pass the character test. The applicant had arrived in Australia in 2007 and had remained in the country since then. His visa application had previously been refused on the basis of a non-genuine relationship, but this decision was set aside on appeal, remitting the matter for consideration of other factors. Subsequently, the Department issued a notice of intention to consider refusal under s 501(1) of the Migration Act 1958 (Cth) due to the applicant not passing the character test, leading to the delegate's decision to refuse the visa. The case was heard by Deputy S Boyle P.

The court was required to determine two key issues: first, whether the applicant passed the character test under the Act, and second, whether the Tribunal ought to exercise its discretion under s 501(1) of the Act to refuse to grant the visa. The applicant's criminal history included multiple convictions, most significantly a conviction in January 2016 for possession of prohibited drugs with intent to sell or supply, for which he was sentenced to one year and four months imprisonment. This conviction meant the applicant had a "substantial criminal record" as defined by s 501(7)(c) of the Act, as he had been sentenced to a term of imprisonment of 12 months or more.

In considering whether to exercise the discretion to refuse the visa, the court applied Direction 65, which outlines primary considerations including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The court found that the protection of the Australian community weighed heavily against granting the visa, citing the nature and seriousness of the applicant's conduct and the unacceptable risk of reoffending. While the interests of the applicant's two children were found to weigh marginally in favour of a visa grant, this was significantly outweighed by the other primary considerations. The court also determined that the expectations of the Australian community would be for the visa to be refused in these circumstances.

Consequently, the decision under review, which affirmed the refusal of the visa, was upheld.