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File number: 2017/5406

Tribunal: Senior Member Theodore Tavoularis

The applicant was refused a visa by a delegate of the Minister for Immigration and Border Protection. On 21 November 2017, the Administrative Appeals Tribunal set aside the decision and substituted a decision that the applicant passed the ‘character test’.

The applicant arrived on Christmas Island in 2012 and after being processed has resided in Australia. Subsequently, a Protection Order was placed against the applicant by his former girlfriend. This was later withdrawn.

Under section 501 of the Migration Act 1958 a visa may be refused if there is a risk the applicant would harass, molest, intimidate or stalk another person in Australia. This is part of the ‘character test’. The delegate’s decision was based on information included in the application for a Protection Order made by the former girlfriend against the applicant.

On a fresh look at the facts and after cross-examination of the applicant, the Tribunal found that the evidence on which the visa was refused was likely misinterpreted. The Tribunal assessed the applicant’s existing risk of breaching section 501. After reviewing the aforementioned application, the Tribunal had several misgivings about the evidence. It was clear the Protection Order had been lawfully terminated and sworn evidence submitted by the applicant’s former girlfriend was to the effect that she “never feared” the applicant would commit domestic violence against her or her children. Further, in applying for the variation order the girlfriend said “I don’t believe that he will ever hurt me or my children.”

The Tribunal was also guided by Ministerial Direction No. 65 which requires a finding that there is more than a minimal or remote chance that the applicant would engage in the type of conduct stated in section 501(6)(d)(ii) of the Migration Act 1958  if he were allowed to remain in Australia.

The Tribunal found no more than a minimal or remote chance of the applicant acting in such a manner because: the only evidence to substantiate any such risk had been completely withdrawn; the applicant had absolutely no criminal history in Australia (or his country of origin); he had complied with the terms of the Protection Orders prior to their withdrawal; and he had otherwise duly and impeccably observed the laws of this country. The Tribunal concluded that the domestic violence allegations could not be provably attributable to the applicant and was thus satisfied that the applicant passed the character test.

Read the full written decision on Austlii.