Shin and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered the case of Mr Shin and the Minister for Home Affairs concerning an application for a Bridging E visa. The primary dispute revolved around whether Mr Shin satisfied the character test as defined in section 501 of the Migration Act 1958 (Cth), and if not, whether the discretion to refuse his visa application should be exercised.

The Tribunal was required to determine two key issues: first, whether Mr Shin passed the character test, and second, if he did not, whether the discretion to refuse his Bridging E visa application should be exercised. This involved assessing the nature and seriousness of his alleged conduct in Korea, the risk he might pose to the Australian community, and the expectations of the Australian community regarding character.

The Tribunal reasoned that Mr Shin did not pass the character test due to an Interpol Red Notice issued by the Republic of Korea, which alleged fraud. The Tribunal found it reasonable to infer from this notice that Mr Shin presented a risk to the Australian community. While Mr Shin had a distinguished career in Korea and had been awarded an Order of Merit, and while certain charges in Australia were dismissed, the Interpol notice and the underlying allegations of fraud were determinative. The Tribunal applied Ministerial Direction No 65, which guides the exercise of the character test discretion, particularly concerning the protection of the Australian community.

Ultimately, the Tribunal affirmed the delegate of the Minister's decision to refuse Mr Shin's application for a Bridging E visa, concluding that it was not appropriate to revoke the refusal in these circumstances.