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

The Administrative Appeals Tribunal considered the case of Mr. Wong, a citizen of the People's Republic of China, who applied for a Bridging E (Class WE) visa. His application was refused by the Minister's delegate under section 501 of the Migration Act 1958 (Cth) on character grounds, specifically due to having a "substantial criminal record" stemming from an aggregate prison sentence of 12 months for two offences. Mr. Wong had been convicted of importing tobacco products with intent to defraud the revenue and possession of tobacco products with intent to defraud, resulting in an aggregate sentence of 12 months imprisonment served by way of an intensive correction order.

The primary legal issues before the Tribunal were whether Mr. Wong passed the character test, and if not, whether the discretion to refuse the visa should be exercised. This assessment was complicated by a recent Full Court decision in *Pearson v Minister for Home Affairs*, which had altered the legal landscape regarding the basis upon which the delegate had refused the visa. The Tribunal also had to consider ministerial directions, the risk of reoffending, and additional factors relating to Mr. Wong's partner and a large number of domestic animals.

The Tribunal reasoned that the delegate's original decision was based on a misapplication of the law as established by *Pearson*. Given the applicant's detention and the impending expiry of the Tribunal's ability to review the decision, the Tribunal adopted a practical and pragmatic approach to provide certainty. It distinguished the present case from a mandatory cancellation review where the original decision might be rendered invalid by *Pearson*. The Tribunal found that the discretion under section 501(1) should not be exercised to refuse the visa.

Consequently, the Tribunal set aside the decision to refuse Mr. Wong a Bridging E (Class WE) visa. In its place, the Tribunal substituted a decision that the discretion under section 501(1) of the Act should not be exercised to refuse the visa, and returned the matter to the Department for processing of the bridging visa application.