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

This matter concerned an application for review of a decision to refuse a protection visa on character grounds, brought by the applicant, FYVY, against the Minister for Immigration, Citizenship and Multicultural Affairs. The applicant had a substantial criminal record, including violent offences and family violence, and the Minister had determined that the applicant did not pass the character test under section 501(1) of the *Migration Act 1958* (Cth). The court was required to consider whether to exercise the statutory discretion to refuse the visa, taking into account Direction 99.

The primary legal issue before the court was the balancing of the serious criminal conduct and the risk posed to the Australian community against other relevant considerations, particularly the prospect of prolonged and indefinite immigration detention. The court had to determine the weight to be given to the applicant's childhood trauma, drug and alcohol dependence, ties to Australia, and the significant legal consequences of affirming the decision, including the inability to remove the applicant to his country of origin and the likelihood of continued detention.

The court reasoned that while the applicant's criminal conduct and the risk of reoffending were serious considerations, the prospect of indefinite detention weighed substantially in his favour. Applying the principles from *WKMZ*, the court acknowledged that prolonged detention without an ascertainable end date is a significant factor. Despite the applicant's antisocial tendencies and the emphasis on community protection in Direction 99, the court found that the length of time the applicant had already spent in detention and the lack of a time-limited plan to end his detention were compelling factors. The court ultimately decided to set aside the decision under review.

The court ordered that the decision under review be set aside and substituted with a decision that the applicant's application for a protection visa not be refused under section 501(1) of the *Migration Act 1958* (Cth).