ZMBZ and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by ZMBZ against a decision by the Minister for Immigration and Border Protection to refuse to grant a Safe Haven Enterprise Visa. The refusal was based on ZMBZ failing to pass the character test, which engaged Australia's non-refoulement obligations. The Administrative Appeals Tribunal was required to consider the application of Ministerial Direction 65, which guides decision-makers in balancing protection obligations with the need to protect the Australian community.

The primary legal issue before the Tribunal was whether the Minister's decision to refuse the visa, despite ZMBZ's potential non-refoulement obligations, was correct. This required the Tribunal to assess the weight to be given to the primary considerations outlined in Ministerial Direction 65, specifically the protection of the Australian community from criminal or other serious conduct, against any humanitarian considerations. The Tribunal had to determine the nature and seriousness of ZMBZ's conduct, the risk of future harm to the Australian community, and the expectations of the Australian community regarding such conduct.

The Tribunal reasoned that Ministerial Direction 65 mandates that primary considerations, such as the protection of the Australian community, should generally be given greater weight than other considerations. Clause 11.1.2 of the Direction highlights that the community's tolerance for risk decreases with the seriousness of potential harm, and that Australia has a low tolerance for criminal or serious conduct by visa applicants. The Tribunal found that ZMBZ's history of violent conduct, including a conviction for a violent crime, was a serious matter of concern. The Tribunal gave significant weight to the victim's fear and the sentencing court's comments reflecting the gravity of the offending. The Tribunal concluded that the fact that the behaviour had not been repeated was not reassuring, and that ZMBZ's violent conduct posed a serious risk to the Australian community. Consequently, the Tribunal affirmed the decision to refuse to grant the visa.