HBDV and Minister for Home Affairs (Migration)

This matter concerned an application by a 32-year-old refugee from Iran, HBDV, who sought to set aside a decision made by the Minister for Home Affairs (Migration). HBDV had arrived in Australia in July 2013 and was later found to owe protection obligations. In 2016, prior to his marriage, HBDV committed two sexual offences, for which he was sentenced to community correction orders which were later converted to fines. His bridging visa was cancelled in December 2016, and he had been in immigration detention since that time. The decision under review was made by the Tribunal, and the present proceedings were before a Senior Member of the Tribunal, R. Pintos-Lopez SM.

The primary legal issue before the Tribunal was whether HBDV met the character test under section 501(1) of the Migration Act 1958 (Cth). This required an assessment of HBDV's past criminal conduct, the wider circumstances surrounding his offending, and his conduct before and after these offences. The Tribunal was required to determine if there was an apprehension of a risk of future offending, concluding on the basis of the evidence that HBDV posed an actual, rather than theoretical, risk of future criminal conduct.

The Tribunal's reasoning focused on HBDV's remorse, insight into his conduct, and the significant social support he had received from his wife, her family, and his church community. Evidence was presented, including witness statements and an expert psychological report, detailing the circumstances of the offences, HBDV's engagement with counselling and spiritual advice from his father-in-law, and his conversion to Christianity. The Tribunal found that HBDV was deeply remorseful, affected by his conduct, and entirely willing to confront and accept his wrongful actions. It was concluded that his social network acted as a preventative measure against further offending, and that he was an integral member of his wife's family.

Ultimately, the Tribunal set aside the Respondent's decision and remitted the matter to the Respondent with a finding that HBDV passed the character test under section 501(1) of the Act. The Tribunal indicated that even if it had found HBDV failed the character test, it would have exercised its discretion in his favour and remitted the decision accordingly.