NYYK and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered an application for a Bridging visa made by NYYK, who had been refused by the Minister for Home Affairs. The refusal was based on NYYK failing to pass the character test under section 501(6)(a) of the Migration Act 1958 (Cth) due to a substantial criminal record. The central dispute concerned whether the discretion to refuse the visa should be exercised, particularly in light of Direction No. 79.

The Tribunal was required to determine if NYYK passed the character test, which involved assessing whether the applicant had a substantial criminal record as defined by section 501(7). This definition includes being sentenced to a term of imprisonment of 12 months or more. The Tribunal also had to consider the application of Direction No. 79, which guides decision-makers on exercising the discretion under section 501(1) to refuse a visa, with a particular focus on the protection of the Australian community from criminal or other serious conduct.

The Tribunal reasoned that NYYK did not pass the character test because he had been convicted on 4 October 2017 of two counts of "Indecent assault person under 16 years of age". For the first count, he was sentenced to 12 months imprisonment with a non-parole period of eight months, and for the second count, he received six months imprisonment, served concurrently. The Tribunal noted that "imprisonment" includes any form of punitive detention. Applying the principles from Direction No. 79, the Tribunal considered the nature and seriousness of the applicant's conduct, noting that violent and sexual crimes, particularly against children, are viewed very seriously. The Tribunal affirmed that it could not look behind the conviction itself, as it was a precondition to the exercise of power under section 501(3A) of the Act.

Ultimately, the Tribunal affirmed the decision under review, finding that the Minister's delegate's decision to refuse NYYK's application for a Bridging visa was correct.