BBFD and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal reviewed a delegate's decision to refuse a protection visa to the applicant, BBFD. The applicant, born in New Zealand, had a history of dishonesty and drug offences in both New Zealand and Australia, and had previously entered Australia using a fraudulent passport. The delegate's decision to refuse the visa was based on the applicant failing to satisfy the character test under section 501(1) of the Migration Act 1958 (Cth).

The Tribunal was required to determine two key issues. Firstly, whether the applicant satisfied the character test. Secondly, if the applicant did not satisfy the character test, whether the discretion to refuse the visa under section 501(1) of the Act should be exercised. This latter determination was to be guided by Ministerial Direction No 65, which outlines primary and other considerations to be taken into account.

The Tribunal found that the applicant had not discharged the onus of demonstrating that she passed the character test, noting her lengthy and persistent offending history which displayed a lack of respect for law enforcement. In considering the discretion to refuse the visa, the Tribunal acknowledged the applicant's arguments regarding the low risk of future offending, the best interests of her child and husband, and Australia's non-refoulement obligations. However, the Tribunal concluded that these factors did not outweigh the seriousness of her conduct and the need to protect the Australian community. The Tribunal affirmed the delegate's decision to refuse the protection visa.