SHTD and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal considered the case of SHTD, a citizen of Vietnam, who had his application for a Partner (Residence) (Class BS) visa refused on character grounds. The dispute centred on whether SHTD passed the character test, which involved assessing his risk of reoffending, and the subsequent exercise of discretion regarding his visa application.

The Tribunal was required to determine if SHTD failed the character test under section 501(6)(d) of the Migration Act 1958, considering the removal of the word "significant" from the previous threshold for risk. It also had to consider the ministerial Direction No. 90, which outlines primary considerations including family violence offences, the best interests of minor children in Australia, and the applicant's links to the Australian community. Finally, the Tribunal had to decide whether to exercise its discretion to refuse the visa, even if SHTD was found not to pass the character test.

The Tribunal found that SHTD did not pass the character test, noting that his oral evidence minimised his culpability and lacked frankness. However, after considering the evidence, including a psychological report and the primary considerations under Direction No. 90, the Tribunal concluded that the preferable decision was not to exercise the discretion to refuse the visa. The Tribunal acknowledged SHTD's history of family violence offences and breaches of intervention orders, but also took into account his long-term residence in Australia, his employment, and the best interests of his children.

Consequently, the Tribunal set aside the decision to refuse SHTD a Partner (Residence) (Class BS) visa and substituted a new decision that the discretion under section 501(1) of the Act should not be exercised to refuse the visa.