NSBB and Minister for Home Affairs (Migration)

This matter concerned an application for review by NSBB of a decision to refuse him a Partner (Temporary) (Class UK) visa under section 501(1) of the *Migration Act 1958* (Cth). The decision was made by the Minister for Home Affairs. The Tribunal, presided over by K Parker M, was required to determine whether NSBB passed the character test as defined by section 501(6) of the Act and, if not, whether to exercise the discretion to refuse the visa.

The primary legal issue before the Tribunal was whether NSBB passed the character test as defined in section 501(6) of the *Migration Act 1958* (Cth). This involved considering whether NSBB met any of the conditions that would lead to him not passing the character test, such as having a substantial criminal record or otherwise not being of good character. If NSBB did not pass the character test, the Tribunal then had to consider the exercise of discretion under section 501(1) of the Act, taking into account the considerations outlined in Direction No. 65, including the protection and expectations of the Australian community, the best interests of minor children, and the impact on family members.

The Tribunal considered evidence regarding NSBB's background, including his upbringing in Fiji and his move to Australia. It also considered evidence from his wife, Mrs NSBB, detailing his character, his role as a husband and father, and the potential impact of his removal from Australia on her and their children. The Tribunal noted that a character reference from NSBB's employer was afforded minimal weight as it did not disclose knowledge of his offending conduct. Applying the principles from *Minister for Immigration & Multicultural & Indigenous Affairs v Godley* [2005] FCAFC 10, the Tribunal determined that NSBB did not pass the character test. However, in exercising the discretion under section 501(1), the Tribunal found that while the protection and expectations of the Australian community weighed in favour of refusal, these were outweighed by the best interests of NSBB's minor children and the significant impact on his family members.

Accordingly, the Tribunal set aside the Reviewable Decision and substituted a decision that NSBB not be refused a Partner (Temporary) (Class UK) visa under section 501(1) of the Act.