NKWF and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a decision by the Minister for Immigration and Border Protection to refuse NKWF a Safe Haven Enterprise Visa. The refusal was made pursuant to section 501(1) of the *Migration Act 1958* (Cth) on the grounds that NKWF did not pass the character test due to having a substantial criminal record. NKWF, a citizen of Afghanistan, had been convicted of armed robbery and sentenced to 2 years and 3 months imprisonment, which was fully suspended.

The primary legal issues before the Tribunal were whether NKWF passed the character test and, if not, whether the Tribunal should exercise its discretion to refuse the visa, taking into account the considerations outlined in Ministerial Direction No. 65. The Tribunal was required to determine if NKWF's criminal conviction constituted a substantial criminal record as defined by the Act, and if so, to weigh various factors, including the protection of the Australian community, the seriousness of the conduct, and international non-refoulement obligations, in deciding whether to grant the visa.

The Tribunal reasoned that NKWF did not pass the character test because his sentence for armed robbery exceeded 12 months, thus satisfying the definition of a substantial criminal record under section 501(7)(c) of the *Migration Act*. In considering the exercise of discretion, the Tribunal applied the principles from the Federal Court decision in *DMH16 v Minister for Immigration and Border Protection* [2017] FCA 448. This required the Tribunal to consider the consequences of refusing the visa, including alternative management options available to the Minister such as granting a temporary visa under section 195A or making a residence determination under section 197AB. The Tribunal carefully weighed these options and the international non-refoulement obligations owed to NKWF against the seriousness of his offending conduct.

Ultimately, the Tribunal affirmed the delegate's decision to refuse NKWF's visa application.