Mithu Kumar SAHA and Minister for Immigration and Border Protection

Mithu Kumar SAHA (the applicant) sought judicial review of a decision by the Minister for Immigration and Border Protection (the Minister) to refuse his application for a partner visa. The refusal was based on the applicant failing to pass the character test due to having a substantial criminal record.

The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the Minister had erred in exercising their discretion to refuse the applicant's visa. Specifically, the Tribunal considered the application of Ministerial Direction No 65, which mandates consideration of factors such as the protection of the Australian community, the seriousness and nature of the applicant's criminal conduct, the risk of reoffending, and the applicant's rehabilitative prospects. The Tribunal also had to weigh the expectations of the Australian community, the best interests of any minor children, the impact on victims of the applicant's criminal conduct, and the impact on the applicant's family.

The Tribunal found that while the applicant's criminal conduct was serious, the Minister had not adequately considered the expert evidence presented regarding the applicant's rehabilitative prospects and the low risk of reoffending. Furthermore, the Tribunal determined that the Minister had given insufficient weight to the best interests of the applicant's minor children and the impact on his family. Consequently, the Tribunal concluded that the decision to refuse the visa was not justified.

The Tribunal set aside the original decision and substituted a new decision to grant the visa.