XCBY and Minister for Immigration and Border Protection (Migration)

This matter concerned an application for review of a delegate's decision to refuse the Applicant a Bridging E visa. The Applicant, a citizen of Cambodia, had been in immigration detention since October 2014. She had previously been convicted of importing a marketable quantity of heroin and sentenced to seven years and six months imprisonment, with a non-parole period of four years and six months. The Applicant did not pass the character test due to this conviction. The primary issue before the court was whether the discretion to refuse the Bridging Visa application under section 501(1) of the *Migration Act 1958* (Cth) should be exercised.

The court was required to determine whether, in light of Ministerial Direction No. 65, the discretion to refuse the Applicant's Bridging Visa application should be exercised. This involved considering the protection of the Australian community, the seriousness and nature of the Applicant's conduct, the expectations of the Australian community, and the risk to the community should the conduct be repeated. The court also had to consider the Applicant's personal circumstances, including the difficult background that led to her offending.

The court reasoned that while the Applicant's drug trafficking offence was serious, her personal circumstances, including significant duress and threats against her family, were relevant to assessing the likelihood of re-offending. The court found the Applicant to be an honest witness whose evidence regarding her background and the circumstances of the offence was largely unchallenged. Applying the principles in Ministerial Direction No. 65, particularly regarding the risk to the Australian community and evidence of rehabilitation, the court concluded that the relevant considerations weighed decisively in favour of not exercising the discretion to refuse the Bridging Visa. Consequently, the delegate's decision was set aside, and the matter was remitted to the Minister with a direction that the Applicant be granted the Bridging E visa.