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

This matter concerned an application for a protection visa by PHMK, who had been refused the visa by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs on character grounds pursuant to section 501(1) of the *Migration Act 1958* (Cth). The applicant had a substantial criminal record. The Administrative Appeals Tribunal (AAT) was required to consider whether there was another reason not to exercise the discretion to refuse the visa, having regard to Direction 90, which outlines considerations including the protection of the Australian community, the best interests of minor children, the expectations of the Australian community, international non-refoulement obligations, the extent of impediments if removed, and links to the Australian community.

The AAT was tasked with determining whether to exercise its discretion to refuse the protection visa, given the applicant's criminal history. This involved weighing the seriousness of the applicant's conduct against other relevant factors. The Tribunal was guided by Direction 90, which mandates consideration of the protection of the Australian community, the expectations of the community regarding non-citizens' conduct, and the risk of future offending. The Direction also specifies factors to assess the nature and seriousness of the applicant's conduct, including the types of crimes, the sentences imposed, the frequency and trend of offending, and the cumulative effect of repeated offences.

In its reasoning, the AAT acknowledged Australia's sovereign right to determine who may enter or remain in the country, and that engaging in serious conduct can lead to forfeiture of this privilege. The Tribunal noted the community's expectation that individuals with serious character concerns would be refused entry or have their visas cancelled. However, after considering the specific circumstances of the applicant, including his family ties in Australia and the nature of his offending, the AAT concluded that the discretion to refuse the visa should not be exercised.

Consequently, the AAT set aside the delegate's decision to refuse the protection visa on character grounds and remitted the matter to the respondent for reconsideration, with a direction not to refuse the applicant's visa under subsection 501(1) of the *Migration Act 1958* (Cth).