XYDJ and Minister for Home Affairs (Migration)

This matter concerned an application for review by XYDJ of a decision by the Minister for Home Affairs (Migration). The primary issues before the Tribunal were whether XYDJ satisfied the character test under section 501(6) of the Migration Act 1958 (Cth) and, if not, whether to exercise the discretion under section 501(1) to refuse to grant XYDJ a bridging visa. The Tribunal considered expert evidence from a medical practitioner regarding an examination of Ms Complainant following an alleged aggravated sexual assault, and a forensic biology report concerning semen and DNA analysis.

The Tribunal was required to determine if XYDJ passed the character test, which involves assessing whether he poses a risk of engaging in criminal conduct in Australia. This assessment was to be made in light of serious sexual assault charges laid against XYDJ, and the Tribunal's own findings regarding the credibility of the allegations made by Ms Complainant. The Tribunal also had to consider whether to exercise its discretion to refuse a bridging visa if XYDJ failed the character test.

The Tribunal found that while the charges laid against XYDJ indicated a case to answer, it was unable to reach a sufficient state of satisfaction that Ms Complainant's allegations were credible. The Tribunal noted that Ms Complainant's credibility was diminished by her subsequent interactions with XYDJ and others, which appeared to involve taunting and an unaccepted apology. Based on its findings regarding the conduct between XYDJ and Ms Complainant, the Tribunal concluded that there was no more than a minimal or trivial risk that XYDJ would engage in criminal conduct if allowed to remain in Australia. The Tribunal also considered positive risk factors, including XYDJ's compliance with bail conditions and the University's continued enrolment of him. The Tribunal acknowledged that the substantive student visa upon which the bridging visa application was based had been cancelled and the review of that cancellation withdrawn, which raised questions about the continued basis for the bridging visa.