CLMF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for a protection visa by CLMF, a citizen of South Sudan, against a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse the visa under section 501(1) of the *Migration Act 1958* (Cth) on the grounds that the applicant did not satisfy the character test. The decision was reviewed by N A Manetta SM in the Administrative Appeals Tribunal.

The Tribunal was required to determine whether to exercise the statutory discretion to refuse the applicant's visa, considering the applicant's criminal history, which included serious violent offending, and the potential consequences of the decision, including the applicant's non-refoulement obligations and the prospect of indefinite detention. The Tribunal also had to weigh the frequency and seriousness of the applicant's offending against protective factors, such as his ties to Australia and the low risk of reoffending.

The Tribunal carefully considered the sentencing remarks from the District Court of South Australia regarding the applicant's conviction for serious violent offences, including an assault on an off-duty police officer. While acknowledging the gravity of this offending and the community's expectations, the Tribunal found that the risk of reoffending was low, supported by the applicant's behaviour on bail. Crucially, the Tribunal weighed the significant factor of the applicant's potential indefinite detention, which was considered to weigh substantially in his favour, particularly given the low prospect of removal to a third country. The Tribunal also noted the applicant's long residence in Australia and his family ties.

Ultimately, the Tribunal decided to set aside the Minister's decision to refuse the protection visa. A substituted decision was made that the applicant's application for a protection visa not be refused under section 501(1) of the Act.