XTTV and Minister for Home Affairs (Migration)

This matter concerned an application for review of a delegate's decision to refuse the Applicant a Protection (Class XA) visa, pursuant to section 501(1) of the Migration Act 1958 (Cth). The Applicant, who arrived in Australia as a child, had a significant criminal history involving offences such as wounding, armed robbery, and driving offences, committed while he was addicted to alcohol and drugs. He had been in immigration detention since May 2014. The review was heard by Deputy Ian Hanger AM QC P.

The court was required to determine whether, in light of Ministerial Direction no. 65, there was a risk of the Applicant committing further offences or engaging in other serious conduct, and whether the nature of his character concerns warranted refusal of a visa from the perspective of the Australian community. Additionally, the court considered whether the refusal of the visa was in the best interests of the Applicant's minor child.

The court accepted the evidence of Professor Stephen J Woods, a clinical and forensic psychologist, who opined that the Applicant's behaviour during highly stressful circumstances, coupled with the presence of significant protective factors, had greater predictive value regarding future risk than his behaviour in detention. The court also gave weight to the evidence of Mr Marc Coleman, a welfare officer, who described the Applicant's exceptional behaviour, positive contributions to the detention community, and role in diffusing difficult situations. Ms Christine Bourke, a solicitor with extensive experience in criminal law and addiction issues, also provided evidence supporting the Applicant's rehabilitation. The court found that the Applicant had made significant efforts to address his past issues with alcohol and drugs, particularly since the birth of his daughter, and had demonstrated positive conduct while in detention.

The court set aside the delegate's decision to refuse the visa and, in substitution, declared that the Applicant should be granted a Protection (Class XA) visa. The court concluded that the community would expect the Applicant to be permitted to remain in Australia, where he has resided for most of his life.