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

This matter concerned an application for a protection visa by RJFB, an Afghan citizen, against a decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs to refuse the visa. The applicant, who had arrived in Australia in 2014, had been convicted of two rape offences committed in March 2015. Following a resentencing in June 2020, which reduced his imprisonment term to two years concurrently, he was placed in immigration detention. The Minister's delegate had decided not to revoke the mandatory visa cancellation, a decision affirmed by the Administrative Appeals Tribunal. The applicant sought judicial review of the Tribunal's decision.

The court was required to determine two primary legal issues. First, whether the applicant satisfied the character test as defined by section 501(6) of the *Migration Act 1958* (Cth). Second, if the applicant did not pass the character test, whether the Tribunal should exercise its discretion to refuse to grant the visa under section 501(1) of the Act, having regard to the considerations prescribed by Direction No 90. This involved assessing factors such as the protection of the Australian community, the nature and seriousness of the applicant's conduct, the risk to the community, the expectations of the Australian community, and the extent of impediments if removed, as well as the strength, nature, and duration of ties to Australia.

The court found that the applicant did not satisfy the character test. In considering the exercise of discretion under Direction No 90, the court noted the absence of evidence regarding domestic violence or minor children, rendering those considerations irrelevant. The court acknowledged the serious nature of the applicant's offending, specifically violent and sexual crimes against women, which are viewed very seriously by the Australian Government and community. While acknowledging the applicant's ties to Australia, including his mother and siblings being Australian residents or citizens, and his limited impediments to removal, the court ultimately concluded that the protection of the Australian community and the expectations of the Australian community regarding serious criminal conduct outweighed these factors.

The court set aside the Tribunal's decision and substituted it with a decision that the power conferred by section 501(1) of the *Migration Act* should not be exercised in respect of the applicant's application for a Protection (subclass 866) visa.