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

This matter concerned an application for a Bridging E (Class WE) visa by an Indian citizen who had failed to pass the character test. The applicant had been in Australia since 2009 and had a history of relationships and visa applications, including a previous partner visa refusal and a conviction for a violent assault in 2016. He subsequently recommenced a relationship with Michelle Davidson, with whom he had two children, and applied for Ministerial Intervention after his partner visa was refused and he was detained.

The primary legal issue before the court was whether the discretion to refuse to grant the visa should be exercised, particularly in light of Ministerial Direction No. 90 and the best interests of the applicant's minor children. The court was required to consider the nature and seriousness of the applicant's conduct, including his violent assault conviction, and the risk to the Australian community should he commit further offences.

The court reasoned that while the applicant's offending was serious, as evidenced by the custodial penalty and the judge's refusal to suspend the sentence, it was a first offence. The court also considered the applicant's subsequent relationship with Ms. Davidson and their two children, noting that the best interests of the children were a significant factor. Applying the principles of Ministerial Direction No. 90, the court concluded that the risk to the community was not so high as to warrant the refusal of the visa.

Consequently, the court decided not to exercise the power to refuse the visa. The Tribunal set aside the delegate's decision to refuse the Bridging E visa and substituted a new decision directing that the visa not be refused.