HJCS and Minister for Home Affairs (Migration)

This matter concerned the review of a delegate's decision to refuse the applicant, a 58-year-old Iranian woman, a Temporary Protection visa on the grounds that she failed to pass the character test under section 501(1) of the *Migration Act 1958* (Cth). The applicant had arrived in Australia as an unauthorised maritime arrival in 2011 and had been in immigration detention since that time. The review was conducted by the Tribunal under Direction No. 65.

The primary legal issue before the Tribunal was whether the discretion to refuse the applicant's visa under section 501(1) should be exercised, given her failure to pass the character test. This required the Tribunal to assess the risk of the applicant engaging in criminal conduct in Australia, as contemplated by section 501(6)(d)(i) of the Act, and to consider the broader policy considerations outlined in Direction No. 65, including Australia's international non-refoulement obligations and the expectations of the Australian community.

The Tribunal reasoned that while the applicant's past offending, including a Canadian assault and Australian spitting and biting offences, evidenced a difficulty in regulating her behaviour in stressful situations and indicated a potential for future reoffending, these offences occurred in specific circumstances unlikely to be repeated. The Tribunal acknowledged the serious nature of the offending but found the risk of her release posing a threat to the Australian community to be low. Applying the principles from *Minister for Immigration, Local Government and Ethnic Affairs v Batey* [1993] FCA 75, the Tribunal considered that a low risk could still be a real risk. However, the Tribunal found that Australia's international non-refoulement obligations and the expectations of the Australian community weighed heavily in favour of granting the visa.

Ultimately, the Tribunal was satisfied that the overall balance of considerations weighed in favour of the applicant. The Tribunal set aside the delegate's decision and substituted a decision that the applicant not be refused a Temporary Protection (Class XD) visa under section 501(1) of the *Migration Act 1958*.