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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant Mr Shrestha a visa. The refusal was based on Mr Shrestha failing to pass the character test, due to having a substantial criminal record. The Tribunal was required to determine whether Mr Shrestha passed the character test and, if not, whether the discretion to refuse the visa should be exercised.

The Tribunal was required to consider the provisions of Direction No 79, which outlines the primary considerations for such decisions, including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. It also had to consider other relevant factors, such as the impact on family members and victims, and the applicant's ties to the Australian community. The Tribunal noted that primary considerations are generally given greater weight than other considerations.

In its reasoning, the Tribunal found that Mr Shrestha did not pass the character test due to his substantial criminal record, which arose from offences of entering a building with intent to commit an indictable offence and indecent assault. While acknowledging Mr Shrestha's remorse, his employment history, and his contributions to the community, the Tribunal found that these factors did not outweigh the primary considerations, particularly the protection of the Australian community. The Tribunal concluded that the discretion to refuse the visa should be exercised.