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

This matter concerned an application for review of a decision to refuse a provisional partner visa to a citizen of Vietnam. The visa applicant had previously been found to fail the character test due to criminal convictions and breaches of visa conditions. The primary legal issues before the Tribunal were whether the visa applicant failed the character test, and if so, whether the discretion to refuse the visa should be exercised in accordance with Ministerial Direction No. 99.

The Tribunal considered the nature and seriousness of the visa applicant's offending, which involved dishonesty and facilitating fraud, and found it to be relatively serious, particularly as it enabled a co-offender to commit more damaging frauds. While the offending was concentrated in a particular period and did not involve violence or targeting vulnerable individuals, the Tribunal noted the applicant's deliberate actions, motivated by greed, and his admission of hiding his activities. The Tribunal also considered the applicant's breach of visa conditions by continuing to study, demonstrating a willingness to flout immigration rules.

Applying these considerations, the Tribunal was satisfied that there was more than a minimal chance the visa applicant would engage in criminal conduct if allowed to re-enter Australia, and therefore found that he failed the character test. Consequently, the discretion to refuse the visa was enlivened. The Tribunal then proceeded to consider whether this discretion should be exercised, taking into account the primary and other considerations outlined in Ministerial Direction No. 99. The Tribunal ultimately set aside the delegate's refusal decision and substituted a new decision, indicating that the discretion to refuse the visa was not exercised.