Labi and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review by Mr Labi of a decision by the Minister for Immigration and Border Protection to refuse his partner visa on character grounds. The refusal was based on Mr Labi's past conduct, specifically sending threatening text messages and breaching a protection order, which led the delegate to believe he posed a risk of engaging in criminal conduct or harassing another person in Australia. The case was heard by Deputy President Bernard McCabe.

The primary legal issues before the court were whether Mr Labi satisfied the character test under section 501 of the *Migration Act 1958* (Cth), and if not, whether the discretion to refuse the visa should be exercised. This involved assessing the risk of Mr Labi engaging in future criminal conduct or harassing another person, and considering the principles outlined in Ministerial Direction No. 65. A secondary issue arose regarding the applicant's appearance at the hearing, with the Tribunal's General Practice Direction requiring applicants to appear in person unless leave for remote attendance is granted, a procedure not followed in this instance.

Deputy President McCabe reasoned that while Mr Labi's past conduct did enliven the discretion to refuse the visa, the risk of future offending was low. He noted that Mr Labi had an otherwise unblemished criminal record and that considerations such as the impact on his child weighed in his favour. The Deputy President also found that the Tribunal had not followed the correct procedure regarding the applicant's attendance at the hearing, as arrangements for him to appear remotely from detention were not properly requested or granted. Applying the principles from Ministerial Direction No. 65, and considering all relevant factors, the Deputy President concluded that the discretion to refuse the visa should not be exercised.

Consequently, the decision under review was set aside. In substitution, the Tribunal was satisfied that the discretion under section 501(1) of the *Migration Act 1958* (Cth) to refuse the applicant's visa on character grounds should not be exercised.