FYBR and Minister for Home Affairs (Migration)

This matter concerned an application for a Safe Haven Enterprise visa (SHEV) by FYBR, a citizen of Afghanistan, who had been convicted of sexually based offences involving child victims. The Minister for Home Affairs had refused to grant the visa under section 501(1) of the *Migration Act 1958* (Cth), finding that FYBR failed to pass the character test under section 501(6)(e). The Administrative Appeals Tribunal was required to determine whether to exercise the discretion to refuse to grant the SHEV, considering the primary considerations of protecting the Australian community, the nature and seriousness of FYBR's conduct, and the risk to the community, against other considerations including Australia's international non-refoulement obligations and the implications of indefinite detention.

The Tribunal considered the evidence presented, including the details of FYBR's offending behaviour towards three teenage males, which involved sexual propositions and unwanted physical contact. It acknowledged that Australia has protection obligations towards FYBR, but the Respondent argued this consideration should carry less weight than the primary considerations. The Tribunal accepted assurances that FYBR would not be returned to Afghanistan in breach of these obligations, but noted that this raised the issue of his continued immigration detention. The Tribunal weighed the fact that FYBR had already served over nine months in custody for his offences and had been in immigration detention for nearly two and a half years since his release from prison.

The Tribunal reasoned that while the protection of the Australian community and community expectations weighed in favour of refusing the visa, the prolonged period of detention, exceeding two years after serving his criminal sentence and with uncertainty about his future release, weighed in favour of not exercising the discretion to refuse. However, ultimately, the Tribunal concluded that the primary considerations of protection of and expectations of the Australian community outweighed the other considerations, including Australia's international non-refoulement obligations and the consequential prolonged detention. The Tribunal affirmed the decision to exercise the discretion to refuse to grant the SHEV.