Gomes De Oliveira and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

This matter concerned an application for an Employer Nomination (Permanent) (Class EN) visa by the Applicant, Mr. Gomes De Oliveira, which had been refused by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. The Applicant challenged this refusal before the Tribunal. The core of the dispute revolved around whether the Applicant failed the character test under section 501(6) of the *Migration Act 1958* (Cth) due to past offending, specifically domestic violence and drink-driving.

The Tribunal was required to determine two primary issues: first, whether there was a risk that the Applicant would engage in criminal conduct in Australia if allowed to remain; and second, if such a risk existed, meaning he did not pass the character test, whether the discretion under section 501(1) of the Act should be exercised to refuse the visa. The Applicant had a history of domestic violence against a former partner, Ms. B, involving physical assault and threats, and an instance of mid-range prescribed concentration of alcohol driving.

In its reasoning, the Tribunal considered the Applicant's history of offending, including a serious domestic violence incident in 2014 and a drink-driving offence in 2011. However, the Tribunal also took into account evidence of reform and the Applicant's positive relationship with his former wife, Ms. A, who provided a letter of support. The Tribunal concluded that the possibility of the Applicant perpetrating violence or engaging in other criminal conduct in the future appeared minimal. Consequently, the Tribunal was not satisfied that there was more than a minimal or remote chance of the Applicant engaging in criminal conduct, and therefore found that he did not fail the character test under section 501(6)(d)(i) of the Act.

Accordingly, the Tribunal set aside the delegate's decision of 16 December 2021 to refuse the visa. The Tribunal substituted a new decision finding that the Applicant passed the character test under section 501(6) of the Act and that his application for the visa should not be refused under section 501(1) of the Act.