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

The Administrative Appeals Tribunal considered an application for a Safe Haven Enterprise (Class XE) visa by YTNP, who had been refused the visa on character grounds. The Minister for Immigration, Citizenship and Multicultural Affairs was the respondent. The Tribunal was asked to determine whether the discretion under section 501(1) of the *Migration Act 1958* (Cth) should be exercised to refuse the visa application.

The primary legal issue was whether the applicant's criminal conduct and other relevant considerations, assessed in light of Ministerial Direction No. 99, warranted the refusal of the visa. This involved weighing the protection of the Australian community against the applicant's ties to Australia and the potential consequences of removal. The Tribunal was required to consider the nature and seriousness of the applicant's past conduct and the risk of future offending.

The Tribunal reasoned that while the applicant had a history of offending, including larceny and an incident of violence in immigration detention, these events occurred at different times and some were many years prior. The Tribunal noted that the applicant's offending in 2017 and 2018 was linked to a fentanyl addiction, which developed after an injury. The Tribunal found that while the protection of the Australian community is a primary consideration, the applicant's limited ties to Australia and the potential impediments to his removal were also relevant. Applying Ministerial Direction No. 99, the Tribunal concluded that the discretion under section 501(1) should not be exercised to refuse the visa.

The Tribunal set aside the reviewable decision and substituted a decision not to exercise the discretion conferred by section 501(1) of the *Migration Act 1958* (Cth) to refuse to grant the applicant a Safe Haven Enterprise (Class XE) visa.