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

This matter concerned an application for review of a decision by the Minister for Immigration, Citizenship and Multicultural Affairs to refuse to grant the Applicant a Protection (Class XA) visa. The refusal was based on the Applicant failing to pass the character test. The Applicant contended that there was another reason to not exercise the power to refuse the visa, despite failing the character test. The decision was heard by Theodore Tavoularis SM.

The primary legal issue before the Tribunal was whether, in light of Ministerial Direction No. 99, there was another reason to exercise the discretion to grant the visa, notwithstanding the Applicant's failure to pass the character test due to past criminal offending. This required an assessment of the seriousness of the Applicant's offending and the weight to be given to his rehabilitation efforts and personal circumstances.

The Tribunal considered the Applicant's evidence regarding his completion of rehabilitative courses, engagement with support services such as STARTTS and Odyssey House, and his stated commitment to avoiding further trouble, particularly in light of the prospect of indefinite detention. However, the Tribunal noted that the Applicant had a multiplicity of convictions that squarely fell within the ambit of paragraph 8.1.1(1)(a) of Ministerial Direction No. 99, specifically crimes of violence such as 'robbery in company' and 'common assault'. The Tribunal found that these convictions were viewed very seriously by the Australian Government and community.

The Tribunal set aside the original decision and substituted it with a decision to grant the Protection (Class XA) visa.