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

This matter concerned an application for a protection visa by YXLM, who was found to fail the character test under section 501(6)(d)(i) of the *Migration Act 1958* (Cth). The Minister for Immigration, Citizenship and Multicultural Affairs contested the application. The case was heard by Mr S. Webb, Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether YXLM failed the character test, considering both past criminal conduct and the effect of prolonged detention on his mental health. A key issue was whether the Tribunal had the jurisdiction and power to consider additional grounds for failing the character test that were not initially specified by the primary decision-maker, particularly when new factual matters arose after the initial decision. The Tribunal also had to consider the procedural fairness requirements, including the adequacy of notice given to YXLM regarding the potential grounds for refusal.

The Tribunal reasoned that while the discretion to refuse a protection visa is enlivened once an applicant fails the character test, the scope of review can expand to include new factual matters that arise after the initial decision. The Tribunal noted that YXLM had committed offences while in immigration detention, which occurred after the initial notice of intention to refuse the visa. This new information was considered relevant to the character test, specifically to a ground under section 501(6)(aa)(i) relating to offences committed in immigration detention, in addition to the originally cited ground under section 501(6)(d)(i). The Tribunal found that YXLM had not provided submissions contesting his failure of the character test, and the new factual information was clearly relevant to the ground in section 501(6)(aa)(i).

Ultimately, the Tribunal found that while YXLM failed the character test, the balance of considerations weighed against the exercise of the discretion to refuse to grant the visa. The Tribunal took into account the adverse effect of indefinite detention on YXLM's mental health, impediments to his removal, and the strength of his links to the Australian community. Consequently, the decision to refuse the visa was set aside and remitted for reconsideration.