QZGZ and Minister for Home Affairs (Migration)

This matter concerned an application for review of a decision by the Minister for Home Affairs to refuse QZGZ a Bridging Visa. QZGZ had arrived in Australia on a Student Visa, which was subsequently cancelled under section 116(1)(e)(i) of the *Migration Act 1958* (Cth) following a charge of knowingly possessing child abuse material. QZGZ was then taken into immigration detention, and his Bridging Visa application was refused under section 501(1) of the Act on the basis that he failed the character test under section 501(6)(d)(i), as there was a risk he would engage in criminal conduct. The Tribunal was required to determine whether QZGZ passed the character test and, if not, whether the discretion to refuse his Bridging Visa should be exercised.

The Tribunal considered the legal principles surrounding the character test, noting that it requires an assessment of whether there is more than a minimal or trivial risk that a person would engage in conduct of character concern. The Tribunal acknowledged that while past conduct can inform future risk, it is insufficient on its own to establish such a risk. Crucially, the Tribunal addressed the tension between QZGZ's right to silence in relation to the pending criminal charge and the need to assess his character for the visa application. The Tribunal distinguished the present case from previous decisions, finding that applicants should not be compelled to disclose evidence about pending criminal charges in Tribunal proceedings, and that inferences from unproven criminal conduct alone should be treated with caution, particularly when it is the sole basis for a visa refusal.

The Tribunal found that QZGZ was entitled to the presumption of innocence regarding the pending charge, which was yet to be heard by a court and was awaiting the finalisation of technical evidence. The Tribunal noted that QZGZ asserted he had a valid defence and that the material against him was largely founded on suspicion. Given the absence of any previous history of offending or other proven misconduct, the Tribunal concluded that the past was not a fertile ground for supporting the proposition that QZGZ failed the character test or posed an unacceptable risk of future criminal conduct. Consequently, the Tribunal set aside the decision to refuse the Bridging Visa and remitted the matter to the Respondent for reconsideration, with a direction that QZGZ passes the character test within the meaning of section 501(6) of the Act.