WKJD 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 Safe Haven Enterprise (Class XE) Visa to the applicant, WKJD. The refusal was based on the applicant failing to pass the character test due to having a substantial criminal record. The core of the dispute was whether the discretionary power to refuse the visa under section 501(1) of the Migration Act 1958 (Cth) should have been exercised, particularly in light of Ministerial Direction No. 99.

The court was required to determine the appropriate weight to be given to both primary and other considerations when assessing a visa refusal under section 501(1) of the Migration Act. Specifically, the court considered how Ministerial Direction No. 99 mandated the evaluation of these considerations, and whether "other considerations" could be afforded greater weight than "primary considerations" in certain circumstances, contrary to a general presumption that primary considerations should carry more weight. The court also examined the application of Primary Consideration 1, which concerns the protection of the Australian community from harm, and the factors to be considered when assessing the nature and seriousness of an applicant's conduct.

The court reasoned that Ministerial Direction No. 99 requires an inquiry into whether one or more of the "other considerations" should be treated as a primary consideration or afforded the greatest weight in the particular circumstances of a case, especially if those circumstances fall outside what generally applies. This approach allows for "other considerations" to be treated as more than merely secondary. The court noted that while the government is committed to protecting the Australian community, and entering or remaining in Australia is a privilege, the assessment of the nature and seriousness of an applicant's conduct must be nuanced. The court ultimately determined that the proper application of the Ministerial Direction necessitated setting aside the delegate's decision to refuse the visa.

Accordingly, the Tribunal set aside the delegate's decision of 11 May 2022 and substituted it with a decision that the discretion to refuse the applicant's Subclass 790 (Class XE) Safe Haven Enterprise Visa under section 501(1) of the Migration Act 1958 (Cth) was not exercised.