PHNR and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for a Temporary Protection visa by an Iraqi national who had arrived in Australia as an unauthorised maritime arrival and was subsequently transferred to Australia for regional processing. The core dispute before the Tribunal was whether the applicant met the character test as defined in section 501(6)(d) of the *Migration Act 1958* (Cth), and if not, whether the Minister's discretion to refuse the visa should be exercised. The applicant had fled Iraq due to fear of harm related to his conversion to Christianity.

The Tribunal was required to determine if the applicant posed a risk of engaging in criminal conduct in Australia, which would lead to him failing the character test under section 501(6)(d)(i) of the Act. If he did fail the character test, the Tribunal would then need to consider whether to exercise the discretion under section 501(1) of the Act to refuse the visa application. In making this assessment, the Tribunal was bound by Direction 65, which outlines principles for considering character concerns, including Australia's sovereign right to determine who remains in the country, the community's expectation regarding serious criminal conduct, and the varying tolerance for such conduct based on the applicant's ties and contributions to the Australian community.

The Tribunal reasoned that, based on the evidence before it, there was no risk that the applicant would engage in criminal conduct in Australia. Consequently, the applicant did not fail the character test under section 501(6)(d)(i) of the Act. As the applicant did not fail the character test, it was unnecessary for the Tribunal to consider the exercise of discretion under section 501(1) to refuse the visa. The Tribunal set aside the decision under review and substituted a decision that the applicant does not fail the character test, and therefore the discretion to refuse the visa should not be exercised.