HQNW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

The Administrative Appeals Tribunal considered an appeal by HQNW against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse an application for a Protection (Class XA) visa. The refusal was based on the applicant failing to pass the character test. The Tribunal was required to determine whether the discretion under section 501(1) of the *Migration Act 1958* (Cth) should be exercised in favour of the applicant, having regard to Ministerial Direction No. 90.

The central legal issue before the Tribunal was the assessment of the applicant's character and the weight to be given to various considerations under Ministerial Direction No. 90. This included evaluating the seriousness of the applicant's criminal offending, the extent to which the applicant accepted responsibility for that conduct, and the countervailing factors presented, such as the impact of his potential removal on his family, particularly his mother and sister. The Tribunal had to balance the protection of the Australian community against the individual circumstances of the applicant and his ties to Australia.

The Tribunal reasoned that while the applicant had a criminal history, including a conviction for aggravated assault, the specific offence of "Commit assault that causes harm – aggravated other – no weapon" was not explored in detail during evidence. The applicant did, however, accept the accuracy of his criminal history and acknowledged that his offending was serious and had escalated. The Tribunal also considered evidence from the applicant's sister, who described the significant negative impact his imprisonment and potential deportation would have on their mother's severe depression and the broader family's emotional well-being. The sister highlighted the applicant's role as a father figure and the strong familial bonds.

Ultimately, the Tribunal found that a specific paragraph of the Ministerial Direction, relating to the nature and seriousness of unlawful conduct, could not be safely applied to the facts. The Tribunal set aside the original decision and substituted its own decision, indicating that the visa refusal was not upheld.