NDBR and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate of the Minister's decision to refuse to grant a Protection (Class XA) visa to the applicant, a citizen of Pakistan. The applicant had arrived in Australia in 2012 and subsequently applied for the visa. Following a conviction for indecent treatment of a child under the age of 16, the delegate of the Minister refused to grant the visa under section 501(1) of the *Migration Act 1958* (Cth) on the basis that the applicant failed to pass the character test due to the nature of the offence under section 501(6)(e). The Tribunal was tasked with determining whether the discretion to refuse the visa should be exercised.

The legal issues before the Tribunal were whether the applicant passed the character test and, if not, whether the discretion under section 501(1) of the Act should be exercised to refuse the visa. The Tribunal found that the applicant did not pass the character test. Therefore, the sole issue was the exercise of the discretion. In considering this discretion, the Tribunal was required to weigh various considerations, including Australia's international non-refoulement obligations, the protection of the Australian community, and the expectations of the Australian community, as guided by Direction 79.

The Tribunal reasoned that while Australia's non-refoulement obligations weighed in favour of granting the visa, these considerations were outweighed by the need to protect the Australian community and the expectations of the Australian community. The Tribunal noted that the applicant's conviction for indecent treatment of a child under 16 was a serious offence, falling under paragraph 11.1.1(1)(a) of Direction 79, which categorises violent and/or sexual crimes as being viewed seriously. The Tribunal concluded that the discretion to refuse the visa under section 501(1) of the Act should be exercised.

Consequently, the Tribunal affirmed the delegate's decision of 7 December 2018 to refuse to grant the applicant a Protection (Class XA) visa.