XTLP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant the applicant a Protection (Class XA) visa. The applicant had failed to pass the character test, leading to the delegate’s decision to refuse the visa under section 501(1) of the *Migration Act 1958* (Cth). The review was heard by the Hon. John Pascoe AC CVO, Deputy President, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the delegate had correctly exercised their discretion to refuse the visa, having regard to Ministerial Direction No. 90. This involved assessing the nature and seriousness of the applicant's offending conduct, the risk of reoffending, the protection of the Australian community, the impact of the offending on victims, the best interests of any minor children, community expectations, international non-refoulement obligations, the extent of impediments to removal, and the applicant's ties to the Australian community.

The Tribunal considered the applicant's history of domestic violence, which was deemed very serious and weighed heavily in favour of refusing the visa. While acknowledging the applicant's stated desire to care for his daughter, KK, who was in state care, the Tribunal found the prospect of him regaining custody to be uncertain at best, given the established foster care arrangements and the legal hurdles involved. The Tribunal also noted the applicant's past offending, including common assault and resisting an officer, and his admissions of abusive behaviour and heavy alcohol consumption during a previous relationship. Despite acknowledging the serious human rights concerns raised by the prospect of indefinite detention, the Tribunal concluded that, on balance, these concerns were outweighed by the cumulative weight of the considerations under Direction 90, particularly the primary considerations relating to the seriousness of the offending conduct and the protection of the Australian community.

Ultimately, the Tribunal affirmed the delegate's decision to refuse to grant the applicant a Protection (Class XA) visa.