Gavin Wills and Minister for Immigration and Border Protection

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration and Border Protection to refuse to grant Mr Gavin Wills an Employer Nomination (Permanent) (Class EN) visa. The refusal was made under section 501(1) of the Migration Act 1958 (Cth) on character grounds. The applicant, a citizen of the United Kingdom, had been sentenced to a term of imprisonment totalling 15 months, suspended for 24 months, for an assault occasioning bodily harm offence committed in November 2010.

The Tribunal was required to determine whether the applicant passed the character test, specifically whether he had a substantial criminal record as defined by section 501(7)(c) of the Act, and to consider the application in light of Ministerial Direction No 65. This Direction mandates that decision-makers give primary consideration to the protection of the Australian community from criminal or other serious conduct, and to the expectations of the Australian community. The Tribunal also had to consider other relevant factors, such as the applicant's ties to Australia and the impact on his partner.

The Tribunal found that the applicant did have a substantial criminal record due to his 15-month suspended prison sentence. In applying Ministerial Direction No 65, the Tribunal weighed the primary considerations, particularly the protection of the Australian community, against other factors. While acknowledging that the applicant had strong ties to Australia, the impact on Australian business interests, and the effect on his partner's visa status were considered, the Tribunal concluded that the primary considerations, especially community protection, generally carry greater weight.

Ultimately, the Tribunal affirmed the delegate's decision to refuse the visa. The Tribunal determined that the seriousness of the applicant's conduct and the risk to the community warranted this outcome, despite the existence of other mitigating factors.