PDWL and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for a protection visa by a citizen of Afghanistan. The applicant, who arrived in Australia in late 2012, applied for a safe haven enterprise visa in 2016. The Department assessed the applicant as facing an appreciable risk of harm if returned to Afghanistan due to his ethnicity, religious faith, and past employment with the Afghan National Army and Department of Education, which would identify him as a government supporter to the Taliban. The applicant also had a criminal conviction for intentionally causing harm, for which he received a prison sentence. The dispute before the Administrative Appeals Tribunal (AAT) arose because, while the applicant met the criteria for a protection visa under section 36 of the *Migration Act 1958* (Cth), his application was referred to a section 501 delegate due to his criminal conviction, leading to a refusal on character grounds.

The primary legal issue before the Tribunal was the appropriate course of action regarding the applicant's protection visa application, given that the delegate had refused it on character grounds. Specifically, the Tribunal had to determine whether to remit the matter with directions or to substitute a decision that the protection visa be granted. This determination was influenced by the Federal Court's decision in *BAL19 v Minister for Home Affairs*, which had implications for the validity of character grounds in certain circumstances. The Tribunal was required to consider whether the delegate had the jurisdiction to refuse the visa on the grounds relied upon, and if not, what the consequence should be for the applicant's visa application.

The Tribunal reasoned that the applicant satisfied all the criteria for the grant of a protection visa, with the exception of the character test criterion. Crucially, the Tribunal noted that the Federal Court's decision in *BAL19* had rendered the character test, as applied in this instance, legally irrelevant. Therefore, the delegate's refusal on character grounds was without jurisdiction. In light of this, and the fact that all other criteria for the visa were met, the Tribunal determined that it was appropriate to substitute a decision that the applicant be granted a protection visa. The Tribunal also considered its obligation under section 2A of the *Administrative Appeals Tribunal Act 1975* (Cth) to pursue a fair, just, economical, informal, and quick mechanism, and concluded that substituting the decision was the preferable course, particularly given the applicant's prolonged detention and desire to be reunited with his family.

The Tribunal's formal decision was to set aside the delegate's refusal and substitute a decision that the applicant be granted a safe haven enterprise visa.