QHRY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The applicant, QHRY, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a Partner (Temporary) (Class UK) visa. The refusal was based on the applicant failing to pass the character test under section 501(6)(a) of the Migration Act 1958 (Cth), which required the Minister to consider exercising the discretion under section 501(1). The matter was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion under section 501(1) of the Migration Act should be exercised in favour of the applicant, despite his failure to pass the character test due to his criminal history. This involved assessing the weight to be given to both primary and other considerations, as outlined in the relevant Ministerial Direction, particularly concerning the protection of the Australian community and the applicant's personal circumstances.

The Tribunal reasoned that while the applicant had demonstrated some positive steps, including ceasing alcohol consumption and expressing remorse, his criminal history, which included multiple contraventions of domestic violence orders and offences involving unlawful entry, was significant. The Tribunal applied the principles from Ministerial Direction 79 (formerly Direction 65), emphasising that the protection of the Australian community is a primary consideration and that crimes of a violent nature, particularly against women and children, are viewed very seriously. Despite evidence from a psychologist suggesting a low risk of reoffending and the applicant's wife's submission indicating an improvement in their relationship, the Tribunal found that these factors did not outweigh the seriousness of the applicant's past conduct and the risk posed to the community.

Ultimately, the Tribunal affirmed the decision of the Minister to refuse the grant of the visa, concluding that the discretion under section 501(1) should not be exercised in the applicant's favour.