Oh and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for a partner visa by Mr. Joonmo Oh (the applicant) who failed to pass the character test under section 501 of the Migration Act 1958 (Cth). The Minister for Immigration and Border Protection had refused to grant the visa on character grounds due to the applicant's substantial criminal record. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the applicant passed the character test and, if not, whether the decision to refuse the visa was the preferable one.

The Tribunal was required to determine two key issues: first, whether the applicant possessed a "substantial criminal record" as defined by section 501(7) of the Act, thereby failing the character test under section 501(6); and second, if the applicant did not pass the character test, whether refusing the visa under section 501(1) was the preferable decision. The applicant had a prior conviction for robbery in 2003, for which he received a 12-month suspended control order, which the Tribunal considered to constitute a substantial criminal record.

In its reasoning, the Tribunal applied the principles outlined in Direction No. 65, which guides decisions regarding visa refusal and cancellation under section 501. The Tribunal acknowledged Australia's sovereign right to determine who enters or remains in the country and the community's expectation that non-citizens will obey Australian laws. However, it also considered factors such as the applicant's long residence in Australia since childhood, his emotional unsettledness following parental separation, evidence of rehabilitation, a low risk of reoffending, and the significant negative impact of family separation on his minor children. Weighing these countervailing considerations against the seriousness of the past offending, the Tribunal found that refusing the visa was not the preferable decision.

Consequently, the Tribunal set aside the decision to refuse the visa and substituted a decision to grant the partner visa.