NSWQ and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by a Zambian citizen, the applicant, against a delegate's decision to refuse his visa application. The applicant had arrived in Australia in 2008 and, following the tragic death of his mother shortly after his arrival, developed a serious alcohol dependency. This dependency was linked to a significant criminal record, accumulating over 45 convictions between 2009 and 2015, including driving offences and serious assault. The applicant had been in immigration detention since March 2015, with a period of imprisonment for driving offences and breaches of court orders.

The primary legal issue before the Tribunal was whether the applicant passed the character test under section 501 of the *Migration Act 1958* (Cth), and if not, whether the discretion to refuse his visa should be exercised. The Tribunal was required to consider Ministerial Direction 65, which mandates consideration of the protection of the Australian community from criminal conduct, the best interests of minor children, and the expectations of the Australian community, as well as other relevant factors such as the impact on family members.

The Tribunal found that the applicant did not pass the character test due to his "substantial criminal record," as defined by section 501(7) of the Act, which is satisfied by sentences of imprisonment exceeding twelve months, irrespective of whether they were fully served. In exercising the discretion under section 501, the Tribunal weighed the primary considerations. It acknowledged the applicant's remorse and stated desire to address his alcohol issues, as well as the impact on his three sisters in Australia. However, the Tribunal concluded that these factors did not outweigh the primary considerations, particularly the need to protect the Australian community from criminal conduct, given the seriousness of his offences, including driving under the influence and violent behaviour.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa.