Sandhu and Minister for Immigration and Border Protection (Migration)

This matter concerned an application by Mr Sandhu, a citizen of India, for a Partner (Temporary) (Class UK) visa. The applicant had remained in Australia unlawfully after his student visa expired and subsequently applied for a partner visa. A delegate of the Minister refused the visa application on 15 May 2017, finding that the applicant did not pass the character test under section 501(1)(6)(i) of the *Migration Act 1958* (Cth) due to his criminal history, which included charges of sexual assault, contravention of release conditions, and common assault. The applicant sought review of this decision by the Tribunal.

The Tribunal was required to determine whether the applicant passed the character test and, if not, whether to exercise the discretion to refuse the visa application. This involved considering the legislative framework, including section 501 of the *Migration Act 1958* (Cth), and Direction No. 65 issued by the Minister, which outlines the principles and factors to be considered when assessing a non-citizen's character. Specifically, the Tribunal had to assess the risk of the applicant engaging in criminal conduct in Australia and the protection of the Australian community.

The Tribunal reasoned that once it found the applicant did not pass the character test, it was necessary to proceed to consider the exercise of discretion to refuse the visa, following the two-step process mandated by section 501 of the Act. The Tribunal applied Direction No. 65, which identifies primary considerations including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The Tribunal found that the primary considerations of protecting the Australian community and meeting community expectations outweighed other considerations, such as the impact on family members.

Consequently, the Tribunal affirmed the delegate's decision to refuse the applicant's Partner (Temporary) (Class UK) visa application, concluding that there was no reason not to give greater weight to the primary considerations and that the discretion to grant the visa would not be exercised.