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

This matter concerned an application for a Protection Visa by a citizen of India. The applicant had resided in Australia since 2007, undertaking education and consistent employment. He converted from Sikhism to Islam in 2010, which caused a significant rift with his family in India. He applied for a Protection Visa in 2013, citing fears of harm from his family and others in India due to his religious conversion. While his application was initially refused, it was later remitted for further consideration, and it was not contested that Australia owed him protection and non-refoulement obligations. However, the applicant had a history of criminal convictions in Australia, including drink driving, violence, dishonesty, and property damage offences, which led to his detention.

The Administrative Appeals Tribunal was required to determine two key issues. Firstly, whether the applicant failed the character test under section 501(6)(d)(i) of the Migration Act 1958 (Cth), which concerns the risk of engaging in criminal conduct in Australia. Secondly, if he did fail the character test, whether the discretion to refuse the visa should be exercised, applying the principles and considerations outlined in Ministerial Direction No. 90.

The Tribunal found that the applicant did fail the character test due to his criminal conduct. However, in exercising the discretion to refuse the visa, the Tribunal considered the applicant's remorse, his efforts at rehabilitation, and the significant personal circumstances he faced, including his conversion to Islam and the resulting estrangement from his family in India. The Tribunal noted the applicant's cessation of drug and alcohol use, his engagement with rehabilitative programs, and his stated commitment to remaining law-abiding. Applying Ministerial Direction No. 90, the Tribunal concluded that the discretion to refuse the visa should not be exercised in this case.

Consequently, the Tribunal set aside the reviewable decision to refuse the visa.