The Case of He and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs exemplifies how section 501 of the Migration Act practically operates. Section 501 states that the Minister may refuse to grant a visa to a person if he/she is not satisfied that the person passes the character test. Conduct that may affect a person’s ability to satisfy this test most commonly includes criminal conduct, actions that represent a danger to the Australian community or anything else that indicates a significant risk to society. It is important to note that if a person does not satisfy the character test, the Minister (or delegate decision maker) has discretion as to whether they will or will not refuse the visa. The case below exemplifies how this discretion is exercised.
The facts of the case involved an applicant who had previously lived in Australia as a permanent resident from 2015-2019. During this time the applicant was convicted of numerous domestic violence offences including; contravening family violence intervention orders, counts of unlawful assault, a count of assaulting police and recklessly causing injury among other charges.
In late 2019 the applicant returned to his home country of China where he stayed until the COVID-19 pandemic threatened to impede his ability to return to Australia. At this point, the applicant sought to apply for a Resident Return (permanent) visa.
This Resident Return visa was refused on the basis of the applicant not satisfying the character test in s 501(1)(6)(d)(i). The applicant appealed this decision to the AAT.
The tribunal was satisfied that the applicant did not satisfy the character test. It was agreed that the man still was likely to commit offences and had unresolved anger management issues. However, regardless of whether an applicant fails to satisfy the character test, a refusal of visa on this basis is discretionary. Therefore, the AAT considered other factors.
For example, the Tribunal accepted the applicants wife’s evidence that she would suffer significant hardship in raising her minor son if she did not have support of her husband (the applicant). It was also found that the applicant played a positive role in his sons life and maintained a close parental relationship. It was seen as the sons best interests that the applicant should be granted the visa allowing him to return to Australia permanently.
It is important to note at this time something called Ministerial Direction No.79 is in force. This direction sets out a guideline on what factors should be ‘primary considerations’ and what factors should be secondary or ‘other considerations’ when a decision maker is deciding to refuse a visa. Among the primary considerations outlined were the best interests of minor children in Australia.
The Tribunal decided that the reasons to grant the visa outweighed the reasons to refuse the visa and therefore the applicant had the original decision overturned.
The case of Sadiq is a contrasting example of where the decision maker exercised his/her discretion, yet the applicants visa application was still refused. In this case, Sadiq had fewer and minor charges than the applicant in the previous case, He. However, this case exemplifies that the decision maker does not only consider the weight of criminal charges. Other factors (such as the interests of minor children in keeping the applicant in Australia and non-refoulement obligations) are just as influential.
Sadiq and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)  AATA 80 (1 February 2021)
The applicant was a citizen of Pakistan who had lodged an application for a Student (Temporary) (Class TU) visa and was granted a bridging visa. In 2019 the applicant was sentenced to seven months imprisonment for possession of stolen property. Consequently, in 2020 the applicant received notice from the Department of Immigration and Border Protection that his application for a visa was refused and his bridging visa was cancelled by operation of law.
The visa was refused under s501(1) of the Migration Act as the applicant failed to satisfy the character test. At this point the applicant appealed to the AAT.
The Tribunal found that the applicant did not satisfy the character test. However, the Tribunal also exercised discretion and considered whether any factors outlined in Ministerial Direction No. 79 would weigh in favour of the applicant’s visa not being refused.
The Tribunal found that the applicant would continue to be a danger to the Australian community. Although the applicant submitted that he had two nieces whose best interests would be served by him staying in Australia, the Tribunal found that it would not severely affect the best interests of the children to refuse the visa.
It was held that the need to protect the Australian community weighed more strongly in favour of the need to refuse the visa than any other considerations. The applicants visa application was refused and the bridging visa was cancelled by operation of law. The applicant was ordered to return to Pakistan.