Singh and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by Mr Singh against a decision to refuse him a visa, heard by Dr L Bygrave, Member, of the Tribunal. The dispute arose because Mr Singh was found not to pass the character test due to having a substantial criminal record, as defined by section 501(7) of the Migration Act 1958 (Cth). The Tribunal was required to determine whether the decision to refuse Mr Singh's visa was the preferable one, having regard to the guidance provided in Direction No. 65.

The legal issues before the Tribunal were whether Mr Singh met the criteria for a substantial criminal record, thereby failing the character test under section 501(6) of the Act, and if so, whether the discretion to refuse his visa should be exercised. In making this determination, the Tribunal was directed to consider the principles outlined in Direction No. 65, which include the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The Tribunal also had to consider other relevant considerations, such as the impact on family members and Australian business interests.

The Tribunal reasoned that Mr Singh's 17-year criminal history, despite five years of positive rehabilitation, meant that Australian community expectations would favour his removal from Australia, thus counting as a primary consideration against him. While acknowledging the emotional and financial dependence of his Australian citizen wife, Ms Singh, and her fear of his departure, the Tribunal found this impact was alleviated by both Mr and Ms Singh having family in Fiji and Mr Singh's ability to resume his life and work there. The Tribunal also found that Mr Singh's family business did not meet the threshold for impacting Australian business interests.

Ultimately, the Tribunal affirmed the decision under review, concluding that Mr Singh did not pass the character test and that the refusal of his visa was the preferable decision.