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

This matter concerned an application for judicial review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant a visa to the applicant, RVKP. The refusal was based on the applicant failing to pass the character test, specifically due to a sexual offence involving a victim who was 17 years old. The case was heard by K Raif SM.

The primary legal issues before the court were the interpretation and application of Ministerial Direction No. 99, particularly concerning the nature and seriousness of the offending conduct, the meaning of a 'child' within the context of the *Migration Act 1958* (Cth), the protection of the Australian community, the strength, nature, and duration of the applicant's ties to Australia, impediments to removal, and other relevant considerations, including the applicant's status as the subject of a protection finding.

The court considered the applicant's ties to Australia, noting that while he had resided in Australia since 2013 and had friends and church associations, there was limited evidence of the strength of these ties, and he had no family in Australia. The court also found that there were no minor children in Australia who would be affected by the decision. Regarding community expectations, the court affirmed that it was bound by the Government's views as articulated in the Direction, rather than independently assessing community expectations. Crucially, the court acknowledged that the applicant was the subject of a protection finding, which engaged Australia's non-refoulement obligations. The court noted that Iran has a policy of not accepting involuntary returns and has historically refused to issue laissez-passers for such returns, despite a Memorandum of Understanding with Australia.

The Tribunal set aside the decision to refuse the visa and substituted it with a decision to grant the visa.