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

The Administrative Appeals Tribunal affirmed the delegate of the Minister's decision to refuse JJRB a Class XA Protection Visa. The refusal was based on JJRB failing to pass the character test due to violent and sexually based offences. JJRB, born in Sudan in 1990, arrived in Australia in 2007 on a Refugee Visa and subsequently accumulated a significant criminal record, including convictions for drug possession, driving offences, affray, and possession of an offensive weapon.

The Tribunal was required to determine whether JJRB passed the character test as defined in subsection 501(6) of the Migration Act 1958 (Cth), and if not, whether to exercise the discretion under subsection 501(1) of the Act to refuse the visa. In making this determination, the Tribunal had to consider the primary considerations outlined in Direction 90, which include the protection of the Australian community, family violence, the best interests of minor children, and the expectations of the Australian community. It also had to consider other relevant factors, such as Australia's non-refoulement obligations and the impact on victims.

The Tribunal reasoned that while JJRB had expressed remorse for his actions and had undertaken some courses in detention, his criminal history, particularly the violent and sexually based offences, weighed heavily against him. The Tribunal applied the principles from Direction 90, giving greater weight to the primary considerations. It noted that while JJRB had some links to the Australian community through past employment, this consideration was not given significant weight as it did not meet the criteria for impacting major projects or important services. The Tribunal also considered the principles from *Bugmy v The Queen*, which address the relevance of a deprived background to an offender's culpability, but concluded that this did not outweigh the need to protect the Australian community.

Ultimately, the Tribunal found that JJRB did not pass the character test. In exercising its discretion under subsection 501(1), the Tribunal determined that the risk to the Australian community posed by JJRB's criminal history was too significant to grant the visa, and therefore affirmed the delegate's decision to refuse the application.