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

The applicant, BNGP, sought judicial review of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs' decision to refuse to grant him a Protection (Class XA) visa. The dispute centred on whether the Minister's discretion under section 501(1) of the *Migration Act 1958* (Cth) should have been exercised in favour of the applicant, despite his criminal convictions. The matter was heard by Deputy President B W Rayment Oam Qc P.

The court was required to determine whether the Minister's decision to refuse the visa, having regard to Direction No. 79, was correct or preferable. This involved assessing the weight to be given to various considerations, including the protection of the Australian community, the best interests of the applicant's minor children in Australia, the applicant's international non-refoulement obligations, and the potential harm the applicant might face if returned to South Sudan, given his mental health issues and physical disability.

The Deputy President reasoned that while the protection of the Australian community was a primary consideration, the applicant's criminal conduct, which ceased in 2013, was not of such a nature or seriousness as to outweigh other significant factors. The applicant had no prior convictions before his last offence in 2013, had not been sentenced to a term of imprisonment, and had engaged in no further criminal conduct since. The court found that the applicant's traumatic past, his significant mental health issues and physical disability, his remorse, and the strong support from his Australian-born children and other witnesses were compelling factors. The Deputy President was particularly impressed by the evidence of a former school principal and a psychologist, who expressed confidence in the applicant's potential to be a responsible member of society, noting his love for his children and his desire for a peaceful life.

Consequently, the Deputy President concluded that the discretion under section 501(1) of the *Migration Act 1958* (Cth) should have been exercised in favour of the applicant. The decision under review was set aside, and the matter was remitted to the respondent for further consideration in accordance with this direction.