BHKM and Minister for Immigration and Border Protection (Migration)

The applicant, BHKM, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse his application for a protection visa. The refusal was based on the applicant failing to pass the character test. The matter came before Deputy President B. W. Rayment of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the discretion conferred by section 501(1) of the *Migration Act 1958* (Cth) should be exercised in favour of the applicant, notwithstanding his failure to pass the character test. This involved a consideration of the applicant's circumstances and the Minister's obligations, including the non-refoulement obligations owed to the applicant under international law.

Deputy President Rayment reasoned that the delegate's decision had failed to adequately consider the applicant's personal circumstances and the potential consequences of removal from Australia. The Tribunal applied the principles established in cases concerning the exercise of discretion under section 501, emphasising the need for a balanced assessment of all relevant factors, including the protection of the Australian community and the humanitarian considerations arising from non-refoulement obligations. The Tribunal found that the delegate's assessment was flawed in its evaluation of these competing interests.

Consequently, the Tribunal set aside the delegate's decision and remitted the application to the respondent for reconsideration according to law.