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

This matter concerned an application for a Protection visa by a 38-year-old citizen of Turkey, VNPC, who had previously been granted a Partner visa in 2001. The delegate of the Minister refused to grant the visa, finding that VNPC did not pass the character test and that the discretion to refuse the visa under section 501(1) of the *Migration Act 1958* (Cth) should be exercised. Deputy President Boyle of the Administrative Appeals Tribunal was required to determine whether VNPC passed the character test and, if not, whether the Tribunal should exercise its discretion to refuse the visa.

The Tribunal was required to determine two primary legal issues. First, whether VNPC passed the character test as defined in section 501(6) of the *Migration Act*, particularly in light of his extensive criminal record, which included 92 offences and multiple terms of imprisonment. Second, if VNPC did not pass the character test, whether the Tribunal should exercise its discretion under section 501(1) of the Act to refuse to grant the visa, taking into account the considerations outlined in Direction 90, including Australia's international non-refoulement obligations and the legal and practical consequences of removal under sections 197C and 198 of the Act.

Deputy President Boyle found that VNPC did not pass the character test, as he had a substantial criminal record by virtue of having been sentenced to terms of imprisonment totalling more than 12 months, and having been sentenced to two or more terms of imprisonment where the total of those terms was 12 months or more. The Tribunal then considered the discretion to refuse the visa under section 501(1), applying Direction 90. After weighing the considerations in favour of granting the visa against those weighing against it, the Tribunal concluded that the considerations against granting the visa outweighed those in favour.

Consequently, the Tribunal affirmed the decision of the delegate of the Minister to refuse to grant VNPC a Protection visa.