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

The applicant, a citizen of Iraq, sought review of a delegate's decision to refuse a Protection (Class XA) (subclass 866) visa under subsection 501(1) of the *Migration Act 1958* (Cth) on the grounds that the applicant did not pass the character test due to a substantial criminal record. The applicant had arrived in Australia in 1993 and had a criminal history spanning from 1999 to 2017. The matter came before the Administrative Appeals Tribunal (the Tribunal) for review of the delegate's refusal.

The Tribunal was required to determine whether the discretion to refuse the visa under section 501(1) of the Act should be exercised, considering Direction No. 90. This involved assessing various factors, including the protection of the Australian community, the expectations of the Australian community, the applicant's protection obligations, impediments to removal, links to the Australian community, and the implications of indefinite detention. The Tribunal also had to consider the nature and seriousness of the applicant's conduct, drawing on established legal principles regarding the assessment of conduct beyond that which formed the basis of criminal convictions.

In its reasoning, the Tribunal acknowledged the applicant's extensive criminal record. However, it also considered the applicant's personal circumstances, including his difficult upbringing in Iraq, his struggles with integration and language barriers upon arrival in Australia, and his claims of rehabilitation, including ceasing drug use and engaging in exercise and bible study. The Tribunal applied the principles from *Pochi and Minister for Immigration* and *Drake v Minister for Immigration and Ethnic Affairs*, which permit consideration of the applicant's entire conduct and circumstances, and require the Minister or Tribunal to determine facts based on the material before them, with the burden of proof resting on the Minister. After weighing all the evidence and in light of Direction No. 90, the Tribunal concluded that the weight of considerations favoured not exercising the discretion to refuse the visa.

Consequently, the Tribunal set aside the delegate's decision and remitted the matter to the respondent for further processing with a direction that the discretion to refuse the Protection visa under section 501(1) not be exercised.