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

The Administrative Appeals Tribunal considered an application for a Bridging E (Class WE) visa made by a Cambodian national who had arrived in Australia in 2013. The applicant had been charged with serious sexual offences against his stepdaughter, and a Family Violence Interim Intervention Order had been made against him. His bridging visa was subsequently cancelled. He then applied for a new bridging visa, which was refused by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The applicant sought review of this refusal.

The Tribunal was required to determine two issues: first, whether the applicant passed the character test under section 501(1) of the Migration Act 1958 (Cth); and second, if he did not pass the character test, whether the Tribunal should exercise its discretion to refuse the visa application. The character test provisions relevantly state that a person does not pass the test if there is a risk that they would engage in criminal conduct in Australia, with the threshold for risk being more than a minimal or trivial likelihood. If the applicant failed the character test, the Tribunal would then need to consider Direction 90, which guides the exercise of discretion in visa refusal and cancellation matters.

The Tribunal found that, based on the evidence before it, there was no more than a minimal or remote risk of the applicant engaging in future criminal conduct. Consequently, the Tribunal was satisfied that the applicant passed the character test. As this finding resolved the primary issue, the Tribunal did not need to consider the exercise of its discretion to refuse the visa. The Tribunal set aside the delegate's decision and remitted the matter to the respondent for reconsideration of the bridging visa application, with the direction that the applicant passes the character test.