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

This matter concerned an application for review of a decision to refuse a Protection (Class XA) Subclass 866 visa. The applicant, ZWCF, did not pass the character test due to a significant criminal history in Australia. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The case was heard by Theodore Tavoularis SM in the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the applicant passed the character test and, if not, whether the discretion conferred by section 501(1) of the *Migration Act 1958* (Cth) should be exercised to refuse the visa. The applicant conceded that he did not pass the character test, as he had a substantial criminal record, including a conviction for sexual penetration of a child under 16 for which he was sentenced to 18 months imprisonment.

In determining whether to exercise the discretion to refuse the visa, the Tribunal considered Ministerial Direction No. 99, which requires decision-makers to take into account various factors, including the protection of the Australian community, the applicant's offending history, and Australia's non-refoulement obligations. The Tribunal noted the applicant's extensive criminal history, which spanned 18 years and involved 75 offences. The Tribunal found that the applicant did not pass the character test and affirmed the decision to refuse the visa.