Zbib and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by Mr Zbib against a decision by the Minister for Immigration and Border Protection to refuse him a Partner (Temporary) (Class UK) visa. Mr Zbib, a citizen of Lebanon, had married an Australian citizen and had an Australian citizen daughter. His visa application was refused because he failed to pass the character test, stemming from a 1999 conviction in Lebanon for an "indecent act" against a minor, for which he was sentenced to two years imprisonment. Mr Zbib argued that this conviction had been expunged from his record in 2007.

The court was required to determine two primary issues: first, whether Mr Zbib passed the character test as defined in the *Migration Act 1958* (Cth), and second, if he did not, whether the discretion to refuse his visa application should be exercised. Mr Zbib contended that his conviction was effectively removed from his record in 2007, thereby meaning he did not possess a "substantial criminal record" for the purposes of the character test. The Minister's delegate had exercised the discretion to refuse the visa based on the conviction.

The court found that the conviction had indeed been "deleted" or "delisted" from Mr Zbib's record in 2007, following a reconsideration of his case. While acknowledging that the circumstances of the original conviction remained unclear, the court determined that the expungement meant Mr Zbib did not have a substantial criminal record for the purposes of the character test. Consequently, the second issue, concerning the exercise of discretion, did not arise. The court set aside the decision to refuse the visa and remitted the matter to the Minister with a direction that Mr Zbib was entitled to be granted the visa.