WXDX and Minister for Immigration and Border Protection (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister's delegate to refuse a Bridging E (Class WE) visa to the applicant, a citizen of [redacted]. The applicant had entered Australia as an unauthorised maritime arrival in 2012 and had resided in Australia since then. The refusal was based on concerns regarding the applicant's character, specifically the risk that he might harass, molest, intimidate, or stalk another person in Australia, as contemplated by section 501(6)(d) of the Migration Act 1958.

The primary legal issue before the Tribunal was whether the applicant passed the character test under section 501(6) of the Act. This required the Tribunal to assess the risk of future conduct, rather than solely relying on past actions. The Tribunal considered the applicant's history, including protection orders made against him by a former girlfriend, and the subsequent variation and cessation of those orders. It also had regard to Ministerial Direction No. 65, which mandates that a finding of past conduct is insufficient; there must be evidence suggesting more than a minimal or remote chance of future engagement in specified conduct.

The Tribunal reasoned that the timing of the application for variation of the protection order and the girlfriend's affidavit, which clarified her reasons and stated she no longer feared the applicant, occurred before the Department issued its notice of intention to consider visa refusal. This timing suggested the variation was not motivated by a desire to protect the applicant's immigration status. Furthermore, the Tribunal found that the applicant's compliance with the protection orders, his lack of a criminal history in Australia, and the girlfriend's sworn evidence that she never feared him, collectively indicated there was not more than a minimal or remote chance that he would engage in future conduct contemplated by section 501(6)(d)(ii). The Tribunal also noted the applicant's history of responsible employment, including humanitarian tasks in [redacted].

Consequently, the Tribunal was satisfied that the applicant passed the character test under section 501(6) of the Act. As it was unnecessary to consider exercising the discretion to refuse the visa on character grounds, the Tribunal set aside the delegate's decision and substituted it with a finding that the applicant passes the character test and his Bridging visa should not have been refused on this basis.