QBXR and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

This matter concerned an appeal by QBXR against a decision by the Minister for Immigration, Citizenship, and Multicultural Affairs to refuse to grant a protection visa on character grounds. The Administrative Appeals Tribunal (AAT) was required to consider whether the applicant passed the character test, and if not, whether to exercise its discretion to refuse the visa. The applicant had a criminal history in Australia, including offences related to driving under the influence, misrepresentation in obtaining a driver's licence, and domestic violence offences, including stalking, intimidation, and common assault against MS.

The primary legal issue before the AAT was whether the applicant satisfied the character test, and if not, whether the discretion to refuse the visa should be exercised under section 501(1) of the *Migration Act 1958* (Cth). This required the Tribunal to consider the criteria outlined in Direction No. 90, specifically the protection of the Australian community and the nature and seriousness of the applicant's conduct. The Tribunal also had to weigh various factors, including the applicant's risk of reoffending, the seriousness of his past offending, the best interests of minor children, the applicant's protection obligations, his links to the Australian community, and the prospect of indefinite detention.

The AAT reasoned that while the applicant's offending, particularly the domestic violence offences, was serious and viewed very seriously by the Australian Government and community, the overall circumstances did not warrant the refusal of the visa. The Tribunal noted that the applicant had a low risk of reoffending and faced indefinite detention. It also considered the best interests of minor children and the applicant's protection obligations. Applying the principles in Direction No. 90, the Tribunal concluded that the cumulative effect of the factors did not support the exercise of discretion to refuse the visa.

Consequently, the AAT set aside the delegate's decision to refuse the protection visa 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).