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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse a Protection Visa to the applicant, VRBF. The Administrative Appeals Tribunal was required to determine whether the applicant passed the character test and, if not, whether to exercise its discretion to grant the visa despite the character concerns.

The primary legal issues before the Tribunal were whether the applicant was deemed not to pass the character test, and if so, how the discretion to grant a visa should be exercised, considering the principles outlined in Direction No. 90. This involved assessing various considerations, including the protection of the Australian community, the best interests of any minor children, community expectations, non-refoulement obligations, the extent of impediments to removal, and the applicant's links to the Australian community.

The Tribunal found that the applicant did not pass the character test due to a substantial criminal record, specifically a 12-month aggregate sentence of imprisonment for multiple offences, including making threats to kill and contravening family violence intervention orders. The Tribunal also noted a further conviction for damaging Commonwealth property while in immigration detention, which also triggers the character test failure. In exercising its discretion, the Tribunal considered the principles that Australia has a sovereign right to determine entry and remaining, that serious criminal conduct can lead to forfeiture of this privilege, and that the Australian community expects refusal for serious character concerns. It also considered that while Australia may afford higher tolerance for conduct by those who have lived in the community for a long time, the nature of certain conduct, such as family violence, can be so serious that strong countervailing considerations may be insufficient.

The Tribunal set aside the delegate's decision to refuse the Protection Visa and remitted the matter to the delegate to reconsider the decision, with a direction to grant the visa if the delegate is satisfied that the discretion should be exercised in favour of the applicant.