Tran and Minister for Immigration and Border Protection (Migration)

This decision concerns an application for a student visa by Ms Tran, which was refused by the Minister for Immigration and Border Protection. The dispute centred on whether the Minister's discretion to refuse to grant a visa should be exercised due to Ms Tran failing to pass the character test. The matter was heard by the Migration and Refugee Division of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether, in light of Ms Tran's past contravention of Australian law, the discretion to refuse her visa application should be exercised. This involved assessing the seriousness of her conduct, the likelihood of her re-offending, and the potential impact of a refusal on her life, weighed against the risk to the Australian community.

The Tribunal found that Ms Tran had engaged in a serious contravention of Australian law, but attributed this to her naivety and a misguided belief that she should not seek further financial assistance from her parents. The Tribunal accepted expert opinion that while she has difficulties with planning and strategy, she is capable of learning from her mistakes, as demonstrated by her behaviour since her release on bail and subsequent good behaviour bond. The Tribunal noted her diligent efforts to reorder her life, her academic progress despite significant anxiety, her part-time employment, and the trust she has earned from various individuals. Considering her exceptional efforts to get back on track while facing sentencing for a serious offence, and the additional support of her husband, the Tribunal concluded that she is extremely unlikely to offend again, and the risk to the Australian community is very small. The Tribunal also considered the significant impact on Ms Tran of not completing her Master's degree, for which she has paid most of the tuition fees.

The Tribunal set aside the decision to refuse the visa, finding that the risk of re-offending was so small that Ms Tran should be given an opportunity to complete her studies in Australia.