Assistant Minister for Immigration and Border Protection v Splendido

For the reasons given above the Tribunal decides to set aside the decision dated 14 October 2024 refusing to grant a Partner (Provisional) (Class UK) visa and substitutes it with a decision the Applicant not be refused grant of a visa under s 501(1) of the Migration Act 1958 (Cth).

In respect of the second category of conduct, s 501(11) of the Act provides that conduct may amount to harassment or molestation even though it does not involve violence or threatened violence.
This provision has been considered by the Full Court of the Federal Court of Australia, and its decision in Minister for Immigration and Border Protection v Sabharwal [2018] FACFC 160 includes the following relevant observations [2]: the decision-maker must first be satisfied that there is 'a risk', and this is an evaluative judgment; if so satisfied, the decision-maker has discretion to refuse the visa.
Exercise of the (latter) discretion, must be informed by Direction No. 110 ('the Direction') which, under s 499 of the Act, comprises written directions to those having powers under the Act. Under s 499(2A) of the Act, I must comply with the Direction.
I note that Annex A to the Direction contains commentary upon the application of the character test, and in respect of s 501(6)(d) states as follows [5.2(2)]:

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