Kumar and Minister for Immigration and Border Protection (Migration)

The Administrative Appeals Tribunal considered an appeal by Mr. Kumar against a decision by a delegate of the Minister for Immigration and Border Protection to refuse his application for a Skilled – Independent (Permanent) (Class SI) visa. The refusal was based on Mr. Kumar failing to pass the character test due to a substantial criminal record, specifically a conviction for assault occasioning bodily harm in Fiji for which he received a suspended 12-month prison sentence.

The Tribunal was required to determine two primary issues: first, whether Mr. Kumar passed the character test as defined by the Migration Act 1958, and second, if he did not pass the character test, whether his visa application should be refused, taking into account the relevant considerations outlined in Ministerial Direction No 65. It was not disputed that Mr. Kumar had a substantial criminal record as defined by section 501(7)(c) of the Migration Act, meaning he did not satisfy the character test under section 501(6)(a).

The Tribunal reasoned that while Mr. Kumar did not pass the character test, the decision to refuse his visa was discretionary. The Tribunal considered various factors, including the protection of the Australian community, the best interests of Mr. Kumar's minor step-daughter who resides in Australia, and the expectations of the Australian community. After weighing these considerations, the Tribunal concluded that the discretion under section 501(1) of the Migration Act should be exercised in Mr. Kumar's favour. Consequently, the Tribunal set aside the delegate's decision and substituted it with a decision that Mr. Kumar's visa application should not be refused, remitting the matter to the Respondent with this direction.