FTYC and Minister for Immigration and Border Protection (Migration)

The applicant, FTYC, sought judicial review of a decision by the Minister for Immigration and Border Protection to refuse their application for a protection visa. The refusal was based on the applicant failing to pass the character test under section 501(1) of the *Migration Act 1958* (Cth). The matter came before Deputy President B W Rayment of the Administrative Appeals Tribunal.

The central legal issue before the Tribunal was whether the discretion under section 501(1) of the *Migration Act 1958* (Cth) should be exercised in the applicant's favour, notwithstanding their failure to pass the character test. This involved assessing the risk of the applicant engaging in criminal conduct and considering the Minister's non-refoulement obligations.

Deputy President Rayment reasoned that while the risk of criminal conduct weighed against exercising the discretion, the non-refoulement obligations weighed strongly in favour of setting aside the original decision. Considering all mandatory considerations, the Tribunal found that the correct and preferable decision was to set aside the reviewable decision. The Tribunal directed that the discretion under section 501(1) be exercised in the applicant's favour.