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

This matter concerned the Administrative Appeals Tribunal's review of a delegate's decision to refuse the Applicant's application for an Employer Nomination (Permanent) (Class EN) (subclass 186) visa. The refusal was based on the Applicant failing to pass the character test under section 501(6)(d)(i) of the Migration Act 1958 (Cth), and the delegate exercising the discretion under section 501(1) of the Act to refuse the visa. The Applicant had arrived in Australia in 2010 and had remained in the country since. His criminal history included an Apprehended Violence Order imposed in 2015, followed by a conviction for contravening that order in 2016, for which he received a good behaviour bond. There was no further evidence of offending after February 2016.

The Tribunal was required to determine two key issues: first, whether the Applicant passed the character test as defined in section 501(6) of the Migration Act; and second, if the Applicant did not pass the character test, whether the discretion under section 501(1) of the Act should be exercised to refuse the visa. The delegate had concluded that the Applicant did not pass the character test and had exercised the discretion to refuse the visa.

The Tribunal considered the Applicant's history, including the imposition of an Apprehended Violence Order and the subsequent conviction for contravening it. It noted that there was no further evidence of criminal offending after February 2016. The Tribunal ultimately set aside the delegate's decision and substituted it with a decision to grant the visa.