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

The case involved an applicant for a Protection (Class XA) visa who was refused the visa by a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs. The core of the dispute concerned whether the applicant passed the character test under section 501(6)(c) of the *Migration Act 1958* (Cth), and if not, whether the Minister should exercise the discretion under section 501(1) to refuse the visa. The matter was heard by Deputy President Boyle of the Administrative Appeals Tribunal.

The legal issues before the Tribunal were twofold: first, whether the applicant failed to pass the character test as defined in section 501(6) of the Act, and second, if the applicant did not pass the character test, whether the Tribunal should exercise its discretion under section 501(1) to refuse the grant of the visa. This assessment was to be conducted in accordance with Ministerial Direction 99, which provided guidance on the application of the character test and the exercise of discretion.

The Tribunal's reasoning focused on the application of section 501(6)(c) and Ministerial Direction 99. The applicant, an Afghan national, had been the subject of an adverse security assessment by ASIO, which assessed him as a risk to security due to his suspected involvement in people smuggling activities. Despite the Australian Federal Police having previously indicated that a case against the applicant for people smuggling was unlikely to proceed due to lack of evidence, ASIO maintained its assessment. The Tribunal considered the principles of good character as outlined in case law, emphasizing that it requires an examination of past and present conduct to reveal enduring moral qualities. While acknowledging the seriousness of the ASIO assessment, the Tribunal ultimately found that the considerations against exercising the discretion not to grant the visa outweighed those in favour.

Consequently, the Tribunal set aside the delegate's decision to refuse the visa and substituted it with a decision not to refuse the grant of the visa under section 501(1) of the Act.