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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel the Applicant's visa under section 501(2) of the Migration Act 1958 (Cth). The cancellation was based on the Applicant failing to pass the character test, specifically due to a conviction for a sexually based offence involving a child and acts of family violence. The Administrative Appeals Tribunal (AAT) was tasked with determining whether the discretion to cancel the visa under section 501(1) should be exercised, considering Ministerial Direction No. 90.

The primary legal issues before the Tribunal were whether the Applicant passed the character test, and if not, whether the discretion to cancel his visa should be exercised. This involved assessing the nature and seriousness of the Applicant's conduct, including the sexual offence and family violence, and evaluating the risk to the Australian community should he re-offend. The Tribunal was required to consider the guidance provided in Ministerial Direction No. 90, particularly concerning the protection of the Australian community from criminal or other serious conduct, and the likelihood of re-offending.

The Tribunal reasoned that while the Applicant's sexual offence was serious and viewed very seriously by the Australian community, it was at the lowest end of the spectrum, resulting in no custodial sentence or recorded conviction. Similarly, the acts of family violence were found to be out of character, short in duration, and ceased after a protection order was made. The Tribunal concluded that the Applicant had no other criminal history and no evidence suggested a likelihood of re-offending. Applying these considerations to the ultimate weighing exercise, the Tribunal found that the discretion to cancel the visa should not be exercised. Consequently, the Tribunal set aside the Minister's decision and substituted it with a decision to refuse to grant the visa, effectively allowing the Applicant to remain in Australia.