CFHQ and Minister for Home Affairs (Migration)

This matter concerned an application for a Safe Haven Enterprise Visa (SHEV) by CFHQ, which was refused by the Minister for Home Affairs on character grounds under section 501(6) of the *Migration Act 1958* (Cth). The applicant had been convicted of offences committed while in immigration detention. The Administrative Appeals Tribunal (the Tribunal) was required to determine whether the discretion to refuse the visa should be exercised, considering both primary and other considerations as outlined in Direction 65.

The central legal issue before the Tribunal was whether the applicant passed the character test, specifically whether the discretion to refuse the visa under section 501 of the Act should be exercised. This involved assessing the primary consideration of protecting the Australian community from harm, as well as other considerations, including the applicant's non-refoulement obligations. The Tribunal also had to consider the weight to be given to various factors, including the applicant's mental health and the circumstances surrounding his offending behaviour.

The Tribunal reasoned that while the applicant's convictions for common assault and obstructing a Commonwealth official were serious, his offending behaviour needed to be viewed in light of his particular circumstances at the time. Crucially, the Minister conceded that the applicant did not pose a risk to the Australian community. The Tribunal accepted this concession, finding it appropriate given the evidence. The Tribunal noted that the applicant had been in immigration detention for approximately one year when the offences occurred, and there was ample medical evidence indicating his mental state was poor, with a history of self-harm and suicidal ideation. The Tribunal concluded that, having regard to all relevant circumstances, the discretion to refuse the application under section 501 should not be exercised.

Consequently, the Tribunal set aside the Minister's decision to refuse the visa and substituted it with a decision that the discretion to refuse the application for a Safe Haven Enterprise Visa under section 501 not be exercised.