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

This matter concerned an application for a Partner (Provisional) (Class UF) visa, which was refused by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on the grounds that the applicant failed to pass the character test under section 501(6)(d)(i) of the *Migration Act 1958* (Cth). The applicant sought review of this decision before the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion conferred by section 501(1) of the Act to refuse to grant a visa should be exercised in the applicant's circumstances. This required the Tribunal to consider the weight to be given to Primary Consideration A, "Protection of the Australian Community," as outlined in paragraph 11.1(1) of the relevant Direction. This consideration involves assessing the nature and seriousness of the applicant's conduct to date and the risk to the Australian community should further offending occur.

In its reasoning, the Tribunal noted the principles guiding the assessment of Primary Consideration A, including the commitment to protecting the Australian community and the low tolerance for visa applicants with a history of criminal or serious conduct. The Tribunal was directed to consider various factors when assessing the nature and seriousness of the applicant's conduct, such as the type of offences, sentences imposed, frequency of offending, and whether false or misleading information was provided. The Tribunal reviewed the applicant's criminal history, as evidenced by various official documents.

Ultimately, the Tribunal determined not to exercise the power conferred by section 501(1) of the Act to refuse the visa. The decision under review was set aside and substituted with a decision that the Tribunal does not exercise this power.