PXYJ and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse a Partner (Migrant) (Class BC) visa to PXYJ, a citizen of India. The refusal was based on PXYJ failing to pass the character test due to a conviction for indecent dealing with a child under 13 years of age. PXYJ sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether PXYJ passed the character test as defined in section 501(6) of the *Migration Act 1958* (Cth), and if not, whether the discretion to refuse the visa should be exercised in light of Direction No. 65. The Tribunal was required to consider the protection of the Australian community, the best interests of PXYJ's minor children, and other relevant considerations.

The Tribunal found that PXYJ did not pass the character test, as he had been convicted of a sexually based offence involving a child, satisfying section 501(6)(e)(i) of the Act. In considering the exercise of discretion under section 501(1), the Tribunal applied Direction No. 65, which mandates consideration of various factors including the protection of the community and the best interests of children. The Tribunal expressed grave concerns about PXYJ's conduct and character, noting a lack of genuine remorse and insight into his offending, particularly his continued justifications for his actions. The Tribunal found no evidence that PXYJ had undertaken any rehabilitation programs for sex offenders, nor had he indicated a willingness to do so, raising serious concerns about the risk of reoffending.

Consequently, the Tribunal affirmed the decision to refuse the visa, finding that the discretion to refuse should be exercised against granting the visa.