Kumar and Minister for Home Affairs (Migration)

This matter concerned an application before Mr. A. Maryniak QC, Member, of the Tribunal, in which the applicant, Mr. Kumar, sought review of a decision to refuse him a visa. The dispute arose from the applicant's prior criminal conviction in 2009, which the Minister considered meant he failed to pass the character test under section 501(6)(e) of the *Migration Act 1958* (Cth). The Tribunal had previously set aside an earlier refusal decision and remitted it for reconsideration.

The legal issues before the court were whether the applicant satisfied the character test, and if not, whether the Minister's discretion to refuse the visa under section 501(1) of the *Migration Act* had been exercised appropriately, considering the principles outlined in Direction No. 65. Specifically, the court had to determine if the applicant's past offending, his subsequent good character, remorse, establishment of a life in Australia, and family circumstances warranted granting him the privilege of a visa.

The Member reasoned that while the applicant did not pass the character test due to his 2009 offence, the discretion under section 501(1) was not unfettered and must be exercised within the boundaries of the Act and relevant directions. Applying the principles in Direction No. 65, particularly those concerning the length of time a non-citizen has been contributing to the Australian community and the consequences for family members, the Member found that the applicant's 2009 offence was a once-off event. The applicant had demonstrated genuine remorse, established a solid life through education and employment, married, and had a child born in Australia, leading to a very low risk of reoffending.

The Tribunal decided to set aside the refusal decision and remit the matter to the Minister for reconsideration according to law.