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

This matter concerned an application for a Bridging E (Class WE) visa by RDVN, a citizen of India, following the refusal of his protection visa application. The core dispute revolved around whether RDVN satisfied the character test under section 501 of the *Migration Act 1958* (Cth) and, if not, whether the discretion to grant the visa should be exercised in his favour. The case was heard by D. J. Morris SM.

The legal issues before the Tribunal were whether RDVN passed the character test, given his conviction for attempting to pervert the course of justice and his resulting 12-month prison sentence, which constituted a substantial criminal record. Consequently, the Tribunal had to determine whether to exercise the discretion under section 501(1) of the Act not to refuse the visa, considering the criteria outlined in Ministerial Direction No. 79. This involved weighing primary considerations such as the protection of the Australian community, the best interests of minor children, and community expectations, against other considerations including international non-refoulement obligations and the impact on family members and victims.

The Tribunal reasoned that RDVN, by virtue of his 12-month prison sentence, did not pass the character test. However, in exercising the discretion under section 501(1), it considered the primary considerations. While acknowledging the seriousness of his offending, including admitted offences related to stalking, threatening to kill, and breaching family violence orders against his partner and son, the Tribunal noted that these did not involve violence against children and that contact with his son was permitted and considered safe. It also observed that RDVN had no prior criminal history in Australia or India before 2015, and had previously worked and contributed to the community. The Tribunal emphasised that any future offending would jeopardise his immigration status.

Ultimately, the Tribunal decided to set aside the delegate's decision to refuse the Bridging E (Class WE) visa. In substitution, it determined that RDVN should not be refused the visa under section 501(1) of the Act.