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

This matter concerned an appeal by the Applicant against the refusal of a Partner (Class UK) visa under section 501(1) of the Migration Act 1958 (Cth) due to the Applicant failing the character test. The decision was made by the Minister for Immigration, Citizenship and Multicultural Affairs. The Tribunal was required to consider the Applicant's personal and family history, including his conviction in Italy for "Assistance for illegal entry and illegal residence," and weigh this against various primary and other considerations as outlined in Ministerial Direction No. 90.

The legal issues before the Tribunal included determining the weight to be given to the Applicant's conviction in light of the factors specified in Direction No. 90, particularly whether it constituted serious conduct that warranted refusal. The Tribunal also had to assess the primary considerations of protecting the Australian community, the best interests of any minor children, and the expectations of the Australian community, alongside other relevant considerations such as the Applicant's links to Australia and the effect of any impediments.

The Tribunal reasoned that while the Applicant's conviction for assisting illegal entry was serious, it did not involve violence, sexual offences, family violence, forced marriage, or conduct against a vulnerable person, which are viewed particularly seriously by the Australian Government and community. The Tribunal noted the Applicant's long-standing ties to Australia through his Australian citizen parents and siblings, his marriage to an Australian citizen, and his established relationships with her extended family. The Tribunal also considered the Applicant's evidence that he was unaware of the passenger's illegal status and would not have assisted if he had known, and that he had not served jail time or paid a fine for the conviction. Weighing all the considerations, the Tribunal was satisfied that the discretion to refuse the visa should not be exercised.

Pursuant to subparagraph 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal set aside the decision to refuse the visa and remitted the matter for reconsideration with a direction that the Applicant passes the character test for the purposes of subsection 501(1) of the Act.