Singh 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 a Skilled (Provisional) (Class VC) Visa to a citizen of India. The refusal was based on the applicant failing to pass the character test, specifically due to persistent inconsistencies in his account of offending and providing false information in a statutory declaration. The Administrative Appeals Tribunal was required to consider the application of Ministerial Direction No. 90 and the applicant's non-refoulement obligations.

The primary legal issue before the Tribunal was whether the applicant failed the character test under section 501(6)(d)(i) of the Migration Act 1958 (Cth). If he did fail the character test, the Tribunal then had to determine whether to refuse the visa application by applying the criteria and considerations set out in Ministerial Direction No. 90, which includes assessing the risk of future criminal conduct and considering any mitigating factors. The Tribunal also had to consider the applicant's claims regarding non-refoulement obligations, particularly in light of the COVID-19 pandemic in India.

The Tribunal reasoned that the applicant did fail the character test due to his past offending and the provision of false information. Applying the principles from cases such as *Akpata* and *Guo*, the Tribunal considered the nexus between past conduct and the likelihood of future criminal behaviour. The Tribunal found that while the applicant had made efforts to improve his education and employment in Australia, these factors were outweighed by the seriousness of his offending and the lack of credible evidence to support his claims of rehabilitation or the extent of his concerns about returning to India due to COVID-19. The Tribunal was not persuaded by the applicant's submissions regarding the impact of COVID-19 in India, finding them speculative and unsupported by reliable evidence.

The Tribunal affirmed the decision to refuse the visa. The Tribunal concluded that the applicant had realistic prospects of finding employment and supporting himself in India and that there was no persuasive evidence of him being unable to rely on family support there. The Tribunal also noted that the applicant's partner's decision to accompany him to India was a personal choice, and her financial reliance on him was not established.