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

The Administrative Appeals Tribunal considered the case of Maksoud and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning the refusal of a Bridging E (Class WE) visa. The applicant failed to pass the character test, leading to the delegate's decision to refuse the visa. The Tribunal was tasked with determining whether to exercise its discretion to set aside the delegate's decision, assessing the risk of the applicant engaging in future criminal conduct and posing a risk of harm to the Australian community, in accordance with Direction No. 79.

The primary legal issues before the Tribunal were whether the applicant passed the character test as defined in section 501(6) of the Migration Act 1958 (Cth), and if not, whether the Tribunal should exercise its discretion under section 501(1) to grant the visa, considering the factors outlined in Direction No. 79. Specifically, the Tribunal had to determine if there was a risk that the applicant would engage in criminal conduct in Australia, a ground for failing the character test under section 501(6)(d)(i).

The Tribunal reasoned that the assessment of risk under section 501(6)(d)(i) requires evidence suggesting more than a minimal or remote chance of future criminal conduct, not merely past conduct. The Tribunal noted that the purpose of section 501(6) is the protection of the Australian community, which extends beyond preventing physical harm or criminal acts to include individual protection from harassment or stalking. In reaching its decision, the Tribunal weighed all the evidence before it, including previous proceedings, to form an independent conclusion. The Tribunal found that the balance of evidence favoured the applicant, leading it to set aside the delegate's decision.

Consequently, the Tribunal decided not to refuse to grant the applicant a Bridging E (Class WE) visa under subsection 501(1) of the Migration Act 1958 (Cth).