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

This matter concerned an application for review of a delegate's decision to refuse to grant Ms Tyson a visa, pursuant to subsection 501(1) of the *Migration Act 1958* (Cth). The primary dispute revolved around whether Ms Tyson passed the character test, as defined in subsection 501(6) of the Act, and if not, whether the discretion to refuse her visa should be exercised. The decision was made by W Frost M.

The legal issues before the Tribunal were twofold: first, whether Ms Tyson satisfied the 'character test' under the Act, and second, if she did not, whether the Tribunal should exercise its discretion under subsection 501(1) to refuse her visa. This second issue required consideration of Direction No 99, which outlines the primary and other considerations relevant to the exercise of this discretion, including protection of the Australian community, the strength of ties to Australia, and expectations of the Australian community.

The Tribunal found that Ms Tyson did not pass the character test due to having a substantial criminal record, as defined by subsection 501(7) of the Act, stemming from her conviction for stealing by servants and fraud. Consequently, the Minister was empowered to refuse her visa. In considering the exercise of discretion under subsection 501(1) and applying Direction No 99, the Tribunal weighed various factors. Ms Tyson provided a statement expressing remorse for her past actions, attributing them to extreme financial hardship, mental health struggles, and a traumatic ectopic pregnancy. She asserted that her behaviour was out of character and that she had since rehabilitated herself. However, the Tribunal found that the potential impact on Mr Shanahan's employment, which Ms Tyson argued was relevant, did not meet the threshold set out in paragraph 9.4 of Direction 99, as there was insufficient independent evidence that his work constituted a 'major project' or 'important service' that would be significantly compromised.

Ultimately, the Tribunal affirmed the delegate's decision to refuse to grant Ms Tyson the visa.