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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a visa to the Applicant under section 501(1) of the *Migration Act 1958* (Cth). The Applicant, a citizen of Iran who arrived in Australia in 2013, had been found to have a substantial criminal record due to serious driving and drug possession offences. The core dispute revolved around whether the Applicant passed the character test and, if not, whether the discretion under section 501(1) should be exercised to refuse the visa. The review was heard by M Evans-Bonner SM.

The legal issues before the Tribunal were twofold: first, whether the Applicant satisfied the character test as defined by section 501(6) of the *Migration Act*, and second, if the Applicant did not pass the character test, whether the Tribunal should exercise its discretion under section 501(1) to refuse the grant of the visa. The Tribunal was required to consider Ministerial Direction No 99, which outlines primary and other considerations, including the protection of the Australian community, the nature and seriousness of the conduct, the risk to the community, the strength and duration of ties to Australia, and the best interests of minor children.

In reaching its decision, the Tribunal considered the Applicant's criminal history, which included offences leading to a substantial criminal record as defined by the Act. The Tribunal also weighed the Applicant's ties to Australia, including his minor daughter and three stepchildren who were in the care of the Department of Child Protection. The Tribunal noted that the Applicant faced impediments to removal from Australia and potential indefinite detention. After considering all relevant factors, including the expectations of the Australian community and the legal consequences of the decision, the Tribunal found that it should exercise its discretion under section 501(1) of the *Migration Act* to refuse to grant the Applicant the visa. The Reviewable Decision was affirmed.