Vivekanandan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The matter before the Tribunal concerned the application for a Bridging E (Class WE) visa by Mr. Vivekanandan, a citizen of Sri Lanka, and the delegate of the Minister's decision to refuse this application. The refusal was based on Mr. Vivekanandan failing to pass the character test due to having a substantial criminal record, specifically a sentence of 12 months or greater. The Tribunal was required to consider whether to exercise its discretion to refuse the visa application, taking into account Direction 90, which outlines primary and other considerations relevant to such decisions.

The legal issues before the Tribunal were whether the applicant met the character requirements for the visa, particularly in light of his criminal convictions, and how the various considerations outlined in Direction 90, including the protection of the Australian community, the nature and seriousness of his offending, the risk to the community, his ties to Australia, the best interests of any minor children, and the expectations of the Australian community, weighed in the exercise of the discretion to refuse the visa. The Tribunal also had to consider Australia's non-refoulement obligations, the extent of impediments if the applicant were returned to Sri Lanka, and the applicant's significant period of residence in Australia.

The Tribunal reasoned that while the applicant had a criminal record, including a conviction for conspiracy to defraud for which he received a wholly suspended 12-month sentence, and a conviction for assault with an act of indecency, these offences occurred a significant time ago and were not of the most serious nature. The Tribunal noted that the applicant had resided in Australia since 1999 and was now 44 years old. It considered the applicant's explanation for his involvement in the conspiracy to defraud, which suggested he was manipulated by another individual. The Tribunal found that the considerations of the best interests of minor children were minimal given their tender age and limited interaction with the applicant. However, it also considered the expectations of the Australian community, as articulated in Direction 90, which suggests that certain serious offences may lead to a refusal regardless of demonstrable risk.

Ultimately, the Tribunal set aside the delegate's decision to refuse the visa application and remitted the matter for reconsideration. This outcome indicates that the Tribunal found that the applicant's circumstances, including his long period of residence in Australia and the nature and age of his offending, warranted a further assessment of the discretionary factors, suggesting that a refusal might not be the appropriate outcome in this specific case.