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

This matter concerned a United Kingdom citizen who applied for a visa to enter Australia. The delegate of the Minister for Immigration, Citizenship and Multicultural Affairs had refused to grant the visa on the grounds that the applicant failed the character test, as prescribed by section 501(6) of the *Migration Act 1958* (Cth). The applicant sought review of this decision before the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the visa applicant passed the character test, having regard to his criminal history in the United Kingdom and certain false declarations made on an Incoming Passenger Card and in his visa application. Specifically, the Tribunal had to consider whether the applicant's past offending, coupled with the false declarations, meant he posed a risk of engaging in criminal conduct in Australia, thereby failing the character test.

In its reasoning, the Tribunal applied Ministerial Direction No. 90 and the principles established in *Minister for Immigration and Ethnic Affairs v Guo* [1997] HCA 22. The Tribunal noted that the applicant had lived a significant portion of his adult life without convictions since his last offence. It also considered that the applicant had disclosed his criminal history, openly admitted to mistakes in his declarations, and demonstrated a change in character and adoption of a pro-social life. The Tribunal concluded that there was no more than a minimal or remote chance that the applicant would engage in criminal conduct if allowed to enter or remain in Australia. Consequently, the Tribunal found that the applicant passed the character test.

The Tribunal set aside the delegate's decision and substituted it with a finding that the visa applicant passes the character test. As a result, the discretion under section 501(1) of the *Migration Act 1958* to refuse the visa was not enlivened, and the visa application should not be refused on character grounds.