Qiao and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by the Minister for Immigration and Border Protection to refuse Mr Qiao's application for a Student (Temporary) (Class TU) visa. The refusal was made under section 501(1) of the Migration Act 1958 (Cth) on the basis that Mr Qiao did not pass the character test due to having a substantial criminal record, specifically a sentence of imprisonment of 12 months or more. The Administrative Appeals Tribunal was required to determine whether to exercise the discretion conferred by section 501(1) to refuse the visa application.

The primary legal issue before the Tribunal was whether, despite Mr Qiao not passing the character test, the discretion under section 501(1) of the Migration Act should be exercised to grant the visa. This required consideration of Direction No. 65, which outlines the principles and factors relevant to such decisions, including the protection of the Australian community, the best interests of minor children (not relevant in this case), and the expectations of the Australian community. The Tribunal had to weigh these considerations against the specific circumstances of Mr Qiao's offending and his personal history.

The Tribunal reasoned that Mr Qiao conceded he did not pass the character test due to his conviction for "Dishonestly Obtaining Financial Advantages etc by Deception," for which he received a 15-month suspended prison sentence. In assessing the protection of the Australian community, the Tribunal considered the nature and seriousness of the conduct, noting the substantial amount of money involved ($285,000) and that it was part of a planned criminal activity. While the sentence was suspended and Mr Qiao had no prior criminal history and was considered to be contributing to society, the Tribunal found that the offence itself was serious. The Tribunal also considered the expectations of the Australian community, which generally has a low tolerance for visa applicants with criminal records. After weighing all relevant factors, the Tribunal affirmed the decision to refuse the visa application.