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

This matter concerned an application for review of a decision to refuse a Protection (Class XA) visa on character grounds under section 501(1) of the *Migration Act 1958* (Cth). The applicant, an Afghan national, did not pass the character test due to having a substantial criminal record. The core of the dispute revolved around whether the discretion to grant the visa should be exercised in the applicant's favour, particularly in light of Ministerial Direction No. 99.

The court was required to determine the weight to be given to various considerations under Ministerial Direction No. 99, including the applicant's personal circumstances, his family ties in Australia, and his potential role as a carer for his elderly parents. A key legal issue was how to balance these mitigating factors against the adverse character grounds that led to the refusal of the visa. The court also had to consider the legal consequences of the decision, including the applicant's liability for removal and the impact on his ability to make further visa applications.

In its reasoning, the court acknowledged the applicant's stated commitment to caring for his parents and his emotional distress regarding their welfare. However, it found that the applicant's evidence regarding his past assistance and future intentions was not entirely reliable, noting inconsistencies and a lack of corroboration. The court applied the principles outlined in Ministerial Direction No. 99, which directs decision-makers to consider both the risk of harm to the Australian community and the best interests of any children affected by the decision, as well as other relevant considerations. Ultimately, the court concluded that Primary Consideration 5, which weighs heavily against granting the visa due to the applicant's criminal record, was not sufficiently outweighed by other factors.

The decision under review was affirmed, meaning the refusal of the Protection (Class XA) visa was upheld. The court found that the applicant did not satisfy the criteria for the exercise of discretion in his favour under section 501(1) of the *Migration Act 1958* (Cth), notwithstanding the considerations of Ministerial Direction No. 99.