Paerau and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision to refuse to grant the Applicant a Bridging Visa E. The Applicant, who was born in the Cook Islands and had resided in Australia since 1998, had his special category visa cancelled in February 2018 following criminal offending. Despite an unsuccessful appeal of that cancellation, he subsequently applied for a Bridging E visa. The delegate refused this application under section 501(1) of the *Migration Act 1958* (Cth) because the Applicant did not pass the character test and was serving a term of imprisonment. The Tribunal was asked to review this refusal.

The legal issues before the Tribunal were twofold. Firstly, whether the Applicant had satisfied the onus to demonstrate that he passed the character test. Secondly, if he did not pass the character test, whether the discretion under section 501(1) to refuse to grant the visa should be exercised. This latter enquiry was to be guided by Direction No 65, which outlines primary and other considerations to be taken into account when exercising this discretion.

The Tribunal found that the Applicant had not discharged the onus to demonstrate he passed the character test. In considering the exercise of discretion under section 501(1), the Tribunal had regard to Direction No 65, particularly the primary consideration of protecting the Australian community from criminal conduct. The Applicant's criminal history, which involved violence and a lack of respect for law enforcement, was considered serious. While the Applicant attributed his offending to alcohol abuse and stress, the Tribunal found these issues to be unresolved and not sufficient to justify reversing the delegate's decision. The Tribunal concluded that the discretion to refuse the Bridging E visa should be exercised, and therefore affirmed the decision under review.