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

This matter concerned an application for a Skilled (Residence) (Class VB) visa by a citizen of China. The applicant had previously been convicted of two offences, Threat To Inflict Serious Injury and Unlawful Assault, arising from a domestic violence incident in 2015. The Department of Home Affairs had formed an intention to refuse the visa on the grounds that the applicant may not pass the character test under section 501(6)(d) of the *Migration Act 1958* (Cth) due to an ongoing risk of future criminal conduct. The Administrative Appeals Tribunal was required to determine whether the applicant failed the character test and, if so, whether to exercise its discretion to refuse the visa.

The primary legal issue before the Tribunal was the interpretation of "risk" as it pertains to section 501(6)(d) of the *Migration Act*. This section requires a determination of whether there is a risk that a person would engage in specified conduct, such as criminal conduct. The Tribunal considered guidance from Direction 79, which states that the ground is enlivened if there is evidence suggesting "more than a minimal or remote chance" of such conduct. The Tribunal also noted that the word "significant" was removed from the legislative threshold for risk in 2014, indicating an intention for the level of risk required to be more than a minimal or trivial likelihood, but not necessarily a significant risk.

The Tribunal reasoned that while the applicant had a past conviction for violent offences, there was no evidence of any other offending behaviour before or since the 2015 incident. The Tribunal also had regard to character references attesting to the applicant's good character. Applying the legal principles regarding the assessment of risk, the Tribunal concluded that the risk of the applicant reoffending was minimal. Consequently, the Tribunal found that the applicant did not fail the character test under section 501(6)(d) of the Act.

As the Tribunal concluded that the applicant passed the character test, it was unnecessary to consider the secondary question of exercising the residual discretion to refuse the visa. The Tribunal set aside the delegate's decision to refuse the visa and substituted a decision not to refuse the grant of the visa.