ZMBZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for review of a decision to refuse to grant a Safe Haven Enterprise (Class XE) visa. The applicant, ZMBZ, had been convicted of common assault against his wife while in immigration detention. The Minister sought to rely on this conviction as a ground for failing the character test under s 501(6)(aa)(i) of the Migration Act 1958 (Cth). The court was required to determine whether the applicant failed the character test and, if so, whether the discretion under s 501(1) of the Act should be exercised in his favour, considering the mandatory considerations under Direction No. 79.

The court was required to consider the protection of the Australian community, the expectations of the Australian community, and international non-refoulement obligations. Specifically, the court had to assess the seriousness of the applicant's offending, noting that crimes of violence against women are viewed very seriously, and that offences committed in immigration detention are also considered serious. The court also had to consider the applicant's HIV status and the potential for him to face serious harm, including loss of life, if returned to Myanmar.

The court reasoned that while the applicant's assault conviction was serious, it was an isolated incident, and there was no evidence of further criminal conduct or a trend of increasing seriousness. The injuries sustained by his wife were not life-threatening, and the likelihood of reoffending was assessed as low. Crucially, the court found that the applicant's international non-refoulement obligations, arising from his HIV status and the risk of serious harm if returned to Myanmar, carried significant weight. The court concluded that, on balance, these humanitarian concerns outweighed the factors relating to the character test, making it the correct and preferable exercise of discretion to grant the visa.

The reviewable decision was set aside, and the matter was remitted to the Minister with a direction that the discretion under s 501(1) of the Act be exercised in favour of the applicant.