MLQP and Minister for Home Affairs (Migration)

The Administrative Appeals Tribunal considered an application for a Safe Haven Enterprise visa by an Afghan national, MLQP, against a decision by the Minister for Home Affairs to refuse the visa. The applicant, who arrived in Australia as an unauthorised maritime arrival in 2012, had been released into the community on a bridging visa. During his time in Australia, he experienced financial hardship, became homeless, and subsequently engaged in drug use. The refusal was based on the applicant failing to pass the character test, specifically under section 501(6)(d)(i) of the Migration Act 1958, which relates to the risk of engaging in criminal conduct in Australia.

The Tribunal was required to determine whether the applicant passed the character test and, if not, whether to exercise the discretion under section 501(1) of the Act to refuse the visa. This involved assessing the risk of the applicant engaging in future criminal conduct in Australia, applying the guidance in Ministerial Direction No. 65. The Tribunal also had to consider Australia's non-refoulement obligations.

In its reasoning, the Tribunal acknowledged that a person fails the character test if there is more than a minimal or trivial likelihood that they would engage in criminal conduct in Australia. It noted that this requires a consideration of past offending but ultimately hinges on the risk of future conduct. The Tribunal found that while the applicant had prior offending, including assault and failure to answer bail, the specific circumstances of the case, particularly Australia's non-refoulement obligations, weighed heavily in favour of granting the visa. The Tribunal concluded that the overall balance of considerations favoured the applicant.

Consequently, the Tribunal set aside the decision under review and substituted its own decision, determining that the applicant should not be refused a Safe Haven Enterprise visa under section 501(1) of the Migration Act 1958.