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

The Administrative Appeals Tribunal considered the application of Mr. Lunavat for an Employer Nomination Scheme (Class EN) (Subclass 186) visa, which had been refused by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The refusal was based on concerns regarding Mr. Lunavat's character, specifically whether he failed the character test under paragraph 501(6)(d) of the *Migration Act 1958* (Cth) due to a risk of engaging in future criminal conduct in Australia.

The primary legal issue before the Tribunal was to determine whether Mr. Lunavat failed the character test as defined in subsection 501(6) of the Act. This involved assessing whether there was a risk, as contemplated by paragraph 501(6)(d), that he would engage in criminal conduct in Australia. The Tribunal was also required to consider Ministerial Direction No. 79, which provides guidance on the application of the character test and the assessment of risk in relation to future conduct, stipulating that the ground is enlivened if there is evidence suggesting "more than a minimal or remote chance" of such conduct.

The Tribunal reasoned that the assessment of risk under paragraph 501(6)(d) requires an objective evaluation, not merely a theoretical possibility. It considered Mr. Lunavat's past offending, which included a conviction for Assault Occasioning Actual Bodily Harm (Domestic Violence) in 2012, and driving-related offences. However, the Tribunal also took into account evidence of Mr. Lunavat's consistently good behaviour and professional conduct over many years since his offending, including testimony from a colleague who described him as a humble and respectful professional who had never given cause for concern. Applying the threshold of "more than a minimal or remote chance" and considering the totality of the evidence, the Tribunal concluded that Mr. Lunavat did not fail the character test under paragraph 501(6)(d).

Consequently, as Mr. Lunavat was found to pass the character test, the Tribunal determined that the discretion to refuse the visa under subsection 501(1) of the Act was not enlivened. The Tribunal set aside the delegate's decision to refuse the visa and substituted a decision not to refuse the grant of the visa.