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

This matter concerned an appeal by Mr F against the refusal of his Partner (Provisional) (Class UF) visa application, which was refused under section 501(1) of the *Migration Act 1958* (Cth) on the grounds that he did not pass the character test. The decision-maker had exercised the discretion to refuse the visa. The appeal was heard by Rebecca Bellamy M.

The primary legal issue before the Tribunal was whether the discretion to refuse the visa should be exercised, considering the applicant's past offending and other relevant factors, particularly in light of Ministerial Direction No. 79. This involved assessing the weight to be given to both primary and other considerations, as outlined in the Direction, and determining the risk to the Australian community.

The Tribunal considered the applicant's conviction for voluntary manslaughter in the United States of America, acknowledging its extreme seriousness. However, it also took into account mitigating circumstances surrounding the offence, including the applicant's belief that the victim had raped a relative and threatened his life, and that the applicant acted in the spur of the moment without a weapon. Crucially, the Tribunal noted the applicant's 21 years of law-abiding conduct since his release from prison, his demonstrated rehabilitation, his contributions to the community, and his role as a husband and father to Australian citizens. The Tribunal found no realistic risk of re-offending and concluded that the positive contributions and the impact on his Australian family weighed heavily in favour of granting the visa.

Consequently, the Tribunal declined to exercise the discretion to refuse the visa application under section 501(1) of the *Migration Act 1958* (Cth). The decision under review was set aside and substituted with a decision that the Tribunal declines to exercise the discretion to refuse the visa.