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

This matter concerned an application for review of a decision to refuse to grant a Class TY Subclass 444 Special Category (Temporary) visa to the Applicant. The Applicant, who had resided in Australia since 2006, did not pass the character test due to a criminal history between 2014 and 2020, which included convictions for affray and reckless wounding. The Administrative Appeals Tribunal (AAT) was required to consider Ministerial Direction No. 99 in its assessment.

The primary legal issue before the AAT was whether the Applicant's offending conduct was so serious that it outweighed other considerations, particularly in light of Ministerial Direction No. 99, which mandates that primary considerations should generally be given more weight. The Tribunal had to assess the nature and seriousness of the Applicant's conduct, including the specific offences committed, and balance this against other factors such as the extent of impediments to re-establishing himself in New Zealand and the impact on victims.

In its reasoning, the AAT found the Applicant's convictions for affray and reckless wounding to be very serious, aligning with the criteria outlined in paragraph 8.1.1(1)(a) of the Direction. The Tribunal also considered the Applicant's personal circumstances, including his family ties in Australia, his history of depression, and his engagement with a rehabilitation program for alcohol abuse. However, the AAT noted that the Applicant would not face language or cultural barriers in New Zealand and, despite claims of emotional and financial hardship, conceded he could find employment in his previous field. The Tribunal found no evidence of impact on victims and no non-refoulement obligations. Ultimately, the AAT determined that the Applicant's offending was serious and that the primary considerations, particularly the protection of the Australian community, weighed heavily against him.

The AAT set aside the decision under review and remitted the matter to the Department of Home Affairs to be decided according to law, with a direction that the Applicant does not pass the character test.