NDFN and Minister for Immigration and Border Protection

This matter concerned an application for a Protection (Class XA) Visa by NDFN, who was assessed against the character test under section 501(6) of the *Migration Act 1958* (Cth). The Minister for Immigration and Border Protection had made a decision to refuse the visa. The decision-maker, A. Nikolic Am Csc SM, considered references from NDFN's family members, including his wife, mother, step-father, brother, and sister, in assessing whether NDFN passed the character test.

The primary legal issue before the court was whether NDFN satisfied the character requirements for the visa, specifically whether he passed the character test as defined in section 501(6) of the Act. This involved a consideration of the discretion granted by section 501(1) of the Act and the application of relevant considerations outlined in the Minister's Direction to NDFN's specific circumstances. The court was required to weigh various factors, including NDFN's past conduct, his rehabilitation efforts, his family support, and the potential impact of a visa refusal.

In reaching its decision, the court acknowledged that references from family members, while valuable, should be treated with caution due to their inherent tendency to support one another. The court noted inconsistencies in the evidence provided by NDFN's wife, particularly regarding domestic violence, and therefore treated her evidence with caution. However, the court found that NDFN had not been imprisoned, had not re-offended, had completed rehabilitation courses, and received strong family support. The court also recognised NDFN's contribution as a healthcare worker and his stated resolve to live a lawful life. The court concluded that the paramount consideration of protecting the Australian community, alongside Australia's non-refoulement obligations and the impact on NDFN's family, outweighed other considerations.

Consequently, the court set aside the original decision to refuse the visa. In substitution, it was decided that NDFN's Protection (Class XA) Visa application should not be refused under section 501(1) of the Act.