BBFD and Minister for Home Affairs (Migration)

This matter concerned an appeal against the refusal of a Protection (Class XA) visa, where the applicant failed to pass the character test. The applicant sought to have the delegate's decision set aside, raising questions about the risk of future criminal conduct and the potential harm to the Australian community. The decision under review was made by a delegate of the Minister for Home Affairs.

The Administrative Appeals Tribunal (AAT) was required to determine whether to exercise its discretion to set aside the delegate's decision. This involved considering whether the applicant posed a risk of harm to the Australian community, the best interests of any minor children in Australia affected by the decision, and the expectations of the Australian community, as guided by Direction No. 79. The Tribunal also had to consider whether the applicant was owed non-refoulement obligations.

The Tribunal's reasoning was informed by established principles regarding its review function. It was noted that the AAT stands in the shoes of the primary decision-maker, exercising the same powers and subject to the same constraints. The AAT must address the same statutory question as the primary decision-maker, considering the same factors that the primary decision-maker was obliged to consider. The Tribunal is not confined to the evidence before the primary decision-maker but must determine the correct or preferable decision based on all the evidence before it, while remaining within the boundaries of the original decision.

The Tribunal ultimately set aside the decision under review.