SNXY and Minister for Immigration and Border Protection (Migration)

The applicant, SNXY, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse their visa application. The dispute centred on whether the applicant met the character test requirements for entry into Australia. The matter was heard by The Hon. Dennis Cowdroy OAM QC, Deputy President.

The court was required to determine whether the Minister's decision to refuse the visa, based on the applicant not passing the character test, was valid. Specifically, the court needed to consider if there was a risk that the applicant would engage in criminal conduct, or harass, molest, intimidate, or stalk another person in Australia, as contemplated by section 501(6)(d) of the Migration Act 1958 (Cth). The court also had to assess the application of Direction No. 65, issued by the Minister, which provides guidance on exercising the discretion to refuse or cancel a visa under section 501.

The Deputy President noted that the Minister's decision was not based on the applicant having a substantial criminal record (s 501(6)(a)), but rather on the risk of future criminal conduct or harassment, molestation, intimidation, or stalking (s 501(6)(d)). The court considered the provisions of section 501(11) of the Act, which clarifies that conduct can amount to harassment or molestation even without violence. The Deputy President applied Direction No. 65, which mandates consideration of primary factors including the protection of the Australian community, the best interests of minor children, and the expectations of the Australian community. The decision affirmed the Minister's refusal of the visa.