Van Lith and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by the Minister's delegate to refuse the Applicant a visa. The Applicant, a citizen of New Zealand, had resided in Australia since 1983 and had a history of offending in both countries. Upon re-entry to Australia in November 2014, the Applicant failed to declare previous criminal convictions, leading to his detention and the refusal of his Special Category visa. Subsequently, he applied for a Bridging E visa, which was refused on the grounds that he did not pass the character test under section 501(6) of the Act.

The primary legal issue before the Tribunal was whether the Applicant passed the character test, specifically referencing sections 501(6)(a) and 501(7)(c) of the Act. The secondary issue was whether, if the Applicant did not pass the character test, the Minister's delegate should exercise the discretion under section 501(1) of the Act to refuse the visa. The Tribunal was required to consider the relevant considerations outlined in Direction No. 65, including the protection of the Australian community from criminal or other serious conduct, the nature and seriousness of the Applicant's conduct, and the risk of future offending.

The Tribunal reasoned that the Applicant did not pass the character test due to his criminal history, which included serious and violent offences such as indecent treatment of a child under 16. The Tribunal noted that section 501(7)(c) of the Act relates to the sentence imposed by a court, not the actual time served in custody. As the Applicant had received two sentences of 12 months imprisonment, albeit wholly suspended, he was deemed not to pass the character test. In considering the exercise of discretion under section 501(1), the Tribunal was bound by Direction No. 65, which mandates consideration of factors such as Australia's sovereign right to determine entry, community expectations regarding serious offenders, and the non-citizen's contribution to the Australian community. The Tribunal found the Applicant's criminal offending to be serious and a consistent theme throughout his history, demonstrating a lack of respect for the rights of others.

The Tribunal affirmed the decision to refuse the Applicant's visa.