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

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a temporary protection visa to the applicant under subsection 501(1) of the *Migration Act 1958* (Cth). The refusal was based on the applicant not passing the character test, specifically due to a risk that the applicant would engage in criminal conduct in Australia, as contemplated by subparagraph 501(6)(d)(i) of the Act. The Tribunal was required to determine whether the delegate’s decision was correct.

The central legal issue before the Tribunal was whether there was evidence suggesting more than a minimal or remote chance that the applicant would engage in criminal conduct if allowed to remain in Australia. In assessing this risk, the Tribunal considered the principles outlined in Direction No. 90, Annex A, which requires an assessment of future conduct based on evidence. The Tribunal also had regard to relevant case law, including decisions that emphasised the need to consider all circumstances of an individual case, the seriousness and nature of past offences, the risk of re-offending, and prospects of rehabilitation.

The Tribunal reasoned that the evidence did not support a finding that the applicant posed more than a minimal or remote risk of future criminal conduct. This conclusion was based on several factors: the applicant’s offence being an isolated incident with no other criminal history; exemplary conduct while in detention, including learning English and working; the resolution of stressors that contributed to the past offending behaviour, such as the applicant’s relationship status and improved understanding of Australian culture; the applicant’s clear willingness to work and likelihood of obtaining employment; and the applicant’s ongoing engagement with counselling, demonstrating insight and a desire for emotional support. Crucially, the Tribunal found that the applicant’s profound need to be present in his son’s life served as a strong protective factor against any future criminal behaviour that could jeopardise that relationship.

Consequently, the Tribunal found that the applicant did not fail the character test under subparagraph 501(6)(d)(i) of the Act. The decision of the Minister’s delegate was set aside and the matter was remitted to the delegate for reconsideration according to law.