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

This matter concerned an application for a Return (Residence) (Class BB) visa by an applicant who did not pass the character test. The decision under review was an affirmation of the refusal of this visa application. The Tribunal was required to consider whether the discretion under section 501(1) of the Migration Act 1958 (Cth) should be exercised in favour of the applicant, having regard to Ministerial Direction No. 90.

The central legal issues before the Tribunal were the assessment of the applicant's risk of re-offending and the weight to be given to expert medical opinions in determining whether to exercise the discretion to grant the visa. Specifically, the Tribunal had to consider two expert reports, one from a forensic psychiatrist in 2015 and another from a forensic psychologist in 2021, which offered differing perspectives on factors predisposing the applicant to offend and the likelihood of future offending. The Tribunal also had to consider the primary and other considerations outlined in Ministerial Direction No. 90, including the protection of the Australian community, the nature of the applicant's conduct, and the expectations of the Australian community.

The Tribunal noted the difficulty in making definitive findings based on expert reports that were not subject to oral examination or cross-examination. While the most recent report from Dr Stevens indicated a "relatively low" risk of re-offence, the Tribunal cautioned that this finding was moderated by the lack of testing and the absence of Dr Stevens' views on the earlier report by Dr Beech. Despite the applicant's submission that he had overcome predispositions to offend, the Tribunal found that his intention to refrain from re-offending remained to be tested. The Tribunal acknowledged that the applicant had not re-offended during periods when he was at large in the community, but also noted a conviction for breach of a domestic violence order. Ultimately, the Tribunal found that the applicant represented a "relatively low" risk of recidivism, following the findings of the most recent clinical expert.