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

This matter concerned an application for a Permanent Residence (Spouse Visa) (Class 801) visa, also known as a Combined Partner (Class UK/BS) visa. The applicant, Mr. Nguyen, sought review of a decision to refuse his visa application. The case was remitted from the Federal Court of Australia following a finding of jurisdictional error. The Tribunal was required to consider Ministerial Direction No 90 and Ministerial Direction No 99, which outline primary and other considerations relevant to such applications, as well as sections 499, 501(1), 501(6), and 501CA of the *Migration Act 1958* (Cth).

The central legal issues before the Tribunal were whether the applicant passed the character test as defined in section 501(6) of the Act, and if not, whether there was another reason, pursuant to the Ministerial Directions, not to exercise the discretion under section 501(1) to refuse the visa application. This involved assessing the applicant's conduct, the risk to the Australian community, the strength of his ties to Australia, the best interests of any minor children, and the expectations of the Australian community, among other considerations.

The Tribunal reasoned that while the applicant did not pass the character test due to serious offending, specifically drug trafficking, there were significant countervailing factors. The Tribunal gave medium weight to the protection of the Australian community and moderate weight to community expectations in favour of refusal. However, it afforded significant weight to the strength, nature, and duration of the applicant's ties to Australia and the best interests of minor children. Furthermore, the Tribunal found medium weight in favour of the applicant regarding the extent of impediments if removed from Australia. Ultimately, the Tribunal concluded that the combined weight of these factors in favour of the applicant outweighed those favouring refusal, leading to the decision that there was another reason not to exercise the discretion to refuse the visa application.