Kumar and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The matter before the Administrative Appeals Tribunal concerned the refusal of a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visa under section 501(1) of the *Migration Act 1958* (Cth). The applicant did not pass the character test, and the Tribunal was required to determine whether the discretion to refuse the visa under section 501(1) should be exercised.

The legal issues before the Tribunal included assessing the applicant's character, particularly in light of his criminal offending, and determining the weight to be given to various considerations under Ministerial Direction No. 99. This involved evaluating the risk of recidivism, the impact on the Australian community, the interests of minor children, and the applicant's ties to Australia.

The Tribunal considered evidence from the applicant, a caseworker, a prospective employer, and a clinical psychologist. The applicant expressed remorse for past offending, including assault and drink-driving offences, and stated he had completed rehabilitation courses. However, he had re-offended after his initial arrival in Australia. The Tribunal found that while the applicant's offending was serious, the interests of his minor children and his established ties to Australia were primary considerations that outweighed other factors favouring refusal. Consequently, the Tribunal determined that the discretion under section 501(1) should not be exercised to refuse the visa.

The Tribunal set aside the decision under review and substituted a new decision to grant the visa.