YTZR and Minister for Home Affairs (Migration)

This matter concerned an application for review of the Minister's decision to refuse the Applicant a Safe Haven (Enterprise) Class XE visa under section 501(1) of the *Migration Act 1958* (Cth). The refusal was based on the Applicant failing to pass the character test, specifically under section 501(6)(d)(i), which relates to a risk of engaging in criminal conduct in Australia. The Applicant, who arrived in Australia as an illegal maritime arrival in 2012, had been charged with offences in 2016, although these charges were subsequently dismissed. The Applicant sought review of the delegate's decision to refuse his visa application.

The primary legal issue before the court was whether the Applicant failed to pass the character test as defined by section 501(6)(d)(i) of the *Migration Act*. This required the court to determine if there was a risk that the Applicant would engage in criminal conduct in Australia. The court also considered, in light of the Applicant's circumstances and the evidence presented, whether other grounds under section 501(6) of the Act were applicable, including engaging in past or present criminal conduct or harassing, molesting, intimidating, or stalking another person.

The court's reasoning focused on the expert medical evidence provided by Dr. Nina Zimmerman, a consultant forensic psychiatrist. Dr. Zimmerman concluded that the Applicant suffered from a psychotic disorder, likely schizophrenia, which was in remission and well-managed with medication. She assessed the risk of the Applicant ceasing medication and experiencing a psychotic episode as low, and the risk of him engaging in stalking behaviour or violence as negligible. The court found that the Applicant's conduct during the incident that led to his charges was attributable to his psychosis and did not demonstrate a lack of moral character or a risk of future criminal conduct. The court was not satisfied that the Applicant failed to pass the character test under section 501(6)(d)(i) or any other relevant provision of section 501(6).

Consequently, the court set aside the decision under review. As the Applicant was not found to have failed the character test, the discretion under section 501(1) of the *Migration Act* to refuse the visa was not enlivened, and it was unnecessary to consider Ministerial Direction 65. The court substituted a decision that the Applicant not be refused the Safe Haven (Enterprise) Class XE visa.