Tom (Migration)

The applicant, Tom, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse his application for a Temporary Graduate visa (subclass 485). The Administrative Appeals Tribunal had affirmed the delegate's decision to refuse the visa.

The primary legal issue before the Federal Court was whether the applicant had met the character requirement under Schedule 1, Item 1107(1)(a) of the Migration Regulations 1994, specifically concerning the complete disclosure of his criminal history. The applicant had a prior conviction for assault occasioning actual bodily harm, for which he received a good behaviour bond.

Her Honour Justice Sheargold found that the delegate's decision, and consequently the Tribunal's affirmation, had failed to properly consider the evidence regarding the applicant's criminal history and the steps taken to disclose it. The Court determined that the applicant had provided sufficient evidence to satisfy the criterion that he had not been convicted of an offence, or that if he had, he had made a complete disclosure of his criminal record. The Court concluded that the decision under review was affected by jurisdictional error.

The Court ordered that the decision of the Administrative Appeals Tribunal be set aside and remitted to the Tribunal for redetermination according to law.