Manku and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for a student visa by the Applicant, Manku, and the Minister for Immigration and Border Protection. The core dispute revolved around whether the Applicant met the character requirements stipulated by section 501 of the Migration Act 1958 (Cth). The Applicant's National Police Certificate revealed convictions for common assault, stalking/intimidation with intent to cause fear of physical harm (domestic), and assault occasioning actual bodily harm, all committed against his wife. These offences led to the Applicant being placed on a two-year good behaviour bond. The Tribunal was required to determine if the Applicant passed the character test and, if not, whether to exercise discretion to grant the visa.

The legal issues before the Tribunal were twofold: first, whether the Applicant satisfied the character test under section 501(6) of the Act, specifically concerning his past criminal conduct and general conduct; and second, if he did not pass the character test, whether the discretion to refuse the visa should be exercised, guided by Direction No 65. The character test requires that a person not be of good character if their past or present criminal or general conduct indicates a lack of enduring moral quality, or if there is a risk they would engage in criminal conduct or harass, molest, intimidate, or stalk another person in Australia.

The Tribunal found that while the Applicant's past criminal conduct was serious, it was an isolated incident and not indicative of an enduring lack of moral quality. The Tribunal was satisfied that the Applicant was of good character, noting that good character is not immutable and that the Applicant's behaviour since the offences demonstrated reform. Furthermore, the Tribunal concluded that there was a "most fanciful risk" and a chance "less than minimal or remote" that the Applicant would engage in future criminal conduct or harass, molest, intimidate, or stalk any person in Australia. Consequently, the Tribunal ordered that the Delegate's decision to refuse the visa be set aside and that the discretion to refuse the grant of the Student visa not be exercised.