BHHX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a Temporary Protection (Class XD) visa to the applicant, identified as BHHX. The applicant, an Iranian citizen who arrived in Australia as an unauthorised maritime arrival at the age of 16, had his bridging visa cancelled after being charged with a criminal offence. The delegate refused the visa under subsection 501(1) of the Migration Act 1958 (Cth), finding that the applicant did not pass the character test due to an ongoing likelihood of reoffending and a risk of engaging in criminal conduct in Australia.

The Tribunal was required to determine whether the applicant passed the character test, specifically under paragraph 501(6)(d)(i) of the Migration Act, which concerns the risk of engaging in criminal conduct in Australia. Additionally, the Tribunal had to consider whether to exercise the discretion under subsection 501(1) to refuse the visa, having regard to Direction No. 90, which outlines primary and other considerations. The Tribunal also had to consider the impact of recent amendments to the Migration Act concerning the removal of protected persons, which could lead to indefinite detention if the visa was refused.

The Tribunal reasoned that the applicant's behaviour in immigration detention, despite leading to criminal convictions, did not provide a reliable indicator of future criminal conduct in the wider community. It noted the significant deterrent effect of prolonged, indefinite detention on a young person without a substantial criminal record. Consequently, the Tribunal was not satisfied that the applicant failed the character test under paragraph 501(6)(d)(i), finding an insignificant risk of further criminal conduct. In exercising the discretion under subsection 501(1), the Tribunal considered the principles in Direction No. 90, including the protection of the Australian community.

The Tribunal set aside the delegate's decision to refuse the visa and remitted the matter for reconsideration. This outcome was based on the finding that the applicant passed the character test and the Tribunal's subsequent consideration of the discretionary factors, including the impact of recent legislative amendments on protected persons.