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

This matter concerned an application for a Safe Haven Enterprise (Class XE) Subclass 790 visa, which was refused by the Minister for Immigration, Citizenship and Multicultural Affairs on the grounds that the applicant did not pass the character test under section 501(1) of the *Migration Act 1958* (Cth). The applicant had a significant criminal history in Australia. The Administrative Appeals Tribunal was required to determine whether the discretion to refuse the visa under section 501(1) of the Act should be exercised, considering the applicant's criminal history and the potential indefinite detention as a legal consequence of such a refusal.

The Tribunal's reasoning focused on the application of Ministerial Direction No. 99, which mandates consideration of specific factors. These included the legal consequences of the decision, the extent of impediments if removed, the impact on victims, and the impact on Australian business interests. A primary consideration was the protection of the Australian community from harm, with an emphasis on the principle that remaining in Australia is a privilege for law-abiding non-citizens. The Tribunal noted the applicant's extensive offending history, which spanned multiple offences including larceny, driving offences, drug-related offences, and an offence against the person, leading to various sentencing modalities and periods of imprisonment.

Ultimately, the Tribunal set aside the Minister's decision to refuse the visa. It substituted this with a decision to not exercise the power to refuse the grant of the Safe Haven Enterprise (Class XE) Visa under section 501(1) of the *Migration Act 1958* (Cth).