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You can win at the Tribunal if you fail the character test

Nguyen and Minister for Home Affairs (Migration) [2018] AATA 4659 (19 December 2018)

Melbourne – Mr Nguyen (a Vietnamese citizen) who has been living in Australia since 1994, let his original visa expire and was refused a new visa by the Department of Home Affairs. The Department of Home Affairs was not satisfied that  Mr Nguyen passed the character test and decided to exercise the discretion provided under section 501(1) of the Migration Act 1958 (Cth) to refuse the visa application. Mr Nguyen was in immigration detention and was liable to be deported. 

Mr Nguyen applied for review of the Department of Home Affairs decision at the Administrative Appeals Tribunal (AAT).

The AAT also found that Mr Nguyen failed the character test. The AAT found that Mr Nguyen does not satisfy the character test for the purpose of the Migration Act 1958 (Cth) in light of his substantial criminal record which incorporates sentences of imprisonment which total greater than 12 months. His sentences include driving offences, possessing and trafficking heroin. 

The Migration Act 1958 (Cth) requires concurrent sentences to be counted in terms of the whole of each term of imprisonment imposed and on the evidence in the National Police Certificate, the 12 month period is exceeded.

Having made the finding that Mr Nguyen does not pass the character test, the AAT moved on to the next mandatory step – to consider the relevant provisions for discretionary visa refusal set out in Ministerial Direction 65.

The provisions of Direction 65 considered by the AAT included:

  • Protection of the Australian community
  • The nature and seriousness of the conduct
  • The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
  • The best interests of minor children in Australia affected by the decision
  • Expectations of the Australian Community
  • Impact on family members
  • Impact on victims
  • Impact on Australian business interests
  • Other considerations

Having considered each of the provisions of Direction 65 listed above, the AAT concluded that the preferable decision was that the discretion provided in section 501(1) of the Migration Act 1958 (Cth) to refuse to grant a visa should not be exercised.

The AAT decided to set aside the decision of the Department of Home Affairs to refuse the visa application and to remit the matter to the Department of Home Affairs with a direction that Mr Nguyen’s application for a visa not be refused under section 501 of the Migration Act 1958.

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