ZJFK and Minister for Home Affairs (Migration)

This matter concerned an application for a protection visa by a citizen of Vietnam who had failed the character test under section 501(6)(d)(i) of the *Migration Act 1958* (Cth) due to a risk of engaging in criminal conduct. The Administrative Appeals Tribunal was required to determine whether the discretion to refuse the visa should be exercised, considering the risk of re-offending and Australia's international non-refoulement obligations.

The Tribunal was tasked with assessing the seriousness of the applicant's conduct, the risk of re-offending, the best interests of minor children, and the expectations of the Australian community. The applicant had been involved in a cannabis cultivation operation, which the Tribunal considered to be serious conduct, particularly given his recent arrival in Australia and his lack of candour. While acknowledging the applicant's rehabilitation efforts and mental health issues, the Tribunal found a low but real risk of re-offending. The Tribunal also accepted that it was in the best interests of certain children for the applicant to be granted the visa, though it gave this consideration reduced weight due to the applicant's limited relationship with them.

The Tribunal reasoned that while the protection of the Australian community and community expectations weighed against granting the visa, Australia's international non-refoulement obligations strongly favoured setting aside the delegate's decision. The Tribunal concluded that the potential significant harm the applicant might face in Vietnam outweighed the adverse considerations related to his offending. Consequently, the Tribunal set aside the decision to refuse the protection visa and substituted it with a decision that the applicant should not be refused a protection visa under section 501(1) of the Act, notwithstanding that he did not pass the character test.