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

This matter concerned an application for review before the Administrative Appeals Tribunal by Mr Miglani, a citizen of the Republic of India, who had been refused a Bridging E (Class WE) visa under section 501(1) of the *Migration Act 1958* (Cth). The core of the dispute revolved around whether Mr Miglani passed the character test and, if not, whether the discretion to refuse the visa should be exercised.

The Tribunal was required to determine two principal questions: first, whether the foundation for the decision that Mr Miglani failed the character test was met, and second, if he did fail the character test, whether the discretion to refuse to grant the visa should be exercised. In considering the exercise of discretion, the Tribunal was guided by ministerial Direction No. 99, which outlines primary considerations including the protection of the Australian community from criminal or other serious conduct, whether the applicant has engaged in family violence, the strength, nature, and duration of ties with Australia, and the expectations of the Australian community, alongside other relevant considerations.

The Tribunal reasoned that Mr Miglani’s criminal convictions for sexual assault, one involving a child and the other an adult woman, constituted serious conduct. Despite the absence of penetrative conduct, the Tribunal found any sexual assault to be inherently a crime of violence. The Tribunal noted that Mr Miglani committed a second, similar sexual assault two months after the first, despite having been interviewed by police regarding the initial complaint, indicating a concerning pattern of behaviour. Furthermore, his ten non-compliance offences for breaching sex offender register reporting obligations demonstrated a disregard for legal duties. While Mr Miglani had no prior offending in Australia or India, and his conduct in detention was not indicative of misconduct, the Tribunal concluded that his overall conduct was serious. Consequently, the Tribunal found that Mr Miglani failed the character test by operation of law and exercised its discretion to refuse to grant the visa. The Tribunal affirmed the decision under review.