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

This matter concerned an appeal to the Administrative Appeals Tribunal regarding the refusal to grant a visa to SWKZ, who had failed to pass the character test due to supplying a prohibited drug in a large commercial quantity. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent.

The Tribunal was required to determine whether to exercise the discretion to refuse to grant the visa, considering Ministerial Direction No. 99. This involved assessing the nature and seriousness of the offending conduct, the protection of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, and the expectations of the Australian community. The Tribunal also considered the legal consequences of the decision.

The Tribunal reasoned that the weight given to any particular matter is for the decision-maker and cannot be approached formulaically. Phrases within Ministerial Direction No. 99, such as "should generally be given greater weight," are intended as guidance for the balancing exercise, leaving room for different approaches in individual cases. The outcome depends on the decision-maker's application of the Direction to the specific evidence. The Tribunal noted that the Direction contemplates particular regard to the principle that entering or remaining in Australia is a privilege conferred on law-abiding non-citizens who respect Australian institutions and do not cause harm. It also requires consideration of the risk to the Australian community should the non-citizen commit further offences. The Tribunal found that the applicant's conduct was serious, and while the Direction lists examples of very serious conduct, it does not limit the range of conduct that may be considered so.

Having regard to all relevant material, the Tribunal was satisfied that the correct and preferable decision was to refuse to grant the visa under section 501(1) of the Migration Act 1958 (Cth). Accordingly, the Tribunal affirmed the decision under review.