QQYJ and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered the case of QQYJ and the Minister for Home Affairs concerning an application for a Bridging visa. The applicant had failed to pass the character test under section 501(6)(d)(i) of the Migration Act 1958 (Cth), leading to the refusal of their visa application by the Minister's delegate. The central dispute revolved around whether the discretion to refuse the Bridging visa should have been exercised, particularly in light of Direction No. 79.

The legal issues before the Tribunal included whether the Minister's delegate had erred in refusing the Bridging visa application and, more broadly, how the discretion under section 501(1) of the Act should be exercised in this specific case. The Tribunal also considered the permissibility of the Respondent seeking to rely on an alternative ground, paragraph 501(6)(c) of the Act, before the Tribunal to support the argument that the applicant did not pass the character test, a practice generally permitted.

The Tribunal reasoned that while the Minister's delegate relied solely on subparagraph 501(6)(d)(i) for the character test refusal, the Respondent was entitled to advance an alternative basis before the Tribunal. The Tribunal's primary consideration was the protection of the Australian community from criminal or serious conduct, as outlined in Direction No. 79. This involved assessing the nature and seriousness of the applicant's conduct, including a conviction for possessing a dangerous drug for which no conviction was recorded but a fine was imposed. The Tribunal noted that the applicant's conduct occurred while he was an unlawful non-citizen and that he had subsequently absconded from immigration detention. However, the Tribunal ultimately found that the Minister's delegate's decision to refuse the Bridging visa should be set aside.

Consequently, the Tribunal ordered that the decision under review be set aside and remitted for reconsideration. The Tribunal directed that the discretion in section 501(1) of the Act to refuse to grant the applicant a Bridging visa not be exercised, deeming this the preferable outcome in the circumstances.