KDSP and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by KDSP against a decision by the Minister for Immigration and Border Protection to refuse a visa. The dispute centred on whether the applicant met the character test, which is a prerequisite for visa approval. The case was heard by M J McGrowdie SM.

The primary legal issue before the court was whether the delegate's decision to refuse the visa, based on the applicant failing to meet the character test due to a substantial criminal record, was correct. This required the court to consider the nature and seriousness of the applicant's conduct, the risk of reoffending, the best interests of any minor children involved, the expectations of the Australian community, and Australia's international non-refoulement obligations.

The court reasoned that while the applicant's criminal offending was a significant factor, it needed to be weighed against other considerations. Crucially, the court noted that Australia's international non-refoulement obligations meant that the applicant could not be returned to their country of origin if they faced a risk of harm there. The court considered the operation of sections 189 and 196 of the *Migration Act 1958* (Cth) concerning mandatory detention, and the introduction of section 197C, which severs the link between removal powers and non-refoulement obligations. The court also acknowledged the Minister's non-compellable discretion under section 195A to grant a visa in the public interest, even to a person in immigration detention, to prevent a breach of non-refoulement obligations.

Ultimately, the court found that in balancing all the considerations, the decision under review was not justified. The court ordered that the decision be set aside and substituted with a decision that the discretion under section 501 of the *Migration Act 1958* (Cth) should not be exercised to preclude the applicant's application for visa approval.