RDQK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application by RDQK for a visa, where the delegate had refused to grant it pursuant to subsection 501(1) of the *Migration Act 1958* (Cth) on the basis that RDQK did not pass the character test due to having a substantial criminal record. The Administrative Appeals Tribunal (AAT) was required to determine whether RDQK passed the character test and, if not, whether to exercise the discretion to refuse the visa.

The legal issues before the Tribunal were twofold: first, whether RDQK met the definition of the 'character test' under subsection 501(6) of the Act, and second, if he did not pass the character test, whether the discretion under subsection 501(1) of the Act to refuse the visa should be exercised. In considering the exercise of this discretion, the Tribunal was bound to apply Direction No 99, which outlines primary considerations including the protection of the Australian community, family violence, ties to Australia, the best interests of minor children in Australia, and community expectations.

The Tribunal reasoned that while Primary Consideration 1 (protection of the Australian community) and Primary Consideration 5 (community expectations) weighed heavily in favour of refusing the visa, Primary Consideration 3 (strength, nature and duration of ties to Australia) and Primary Consideration 4 (best interests of minor children in Australia) also weighed heavily in favour of RDQK. The Tribunal found that these latter considerations, along with two other considerations that weighed marginally against refusal, tipped the finely balanced matter in RDQK's favour. Consequently, the Tribunal set aside the delegate's decision and substituted a decision to not refuse to grant RDQK a Bridging E (Class WE) visa.