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

This matter concerned an application for review of a decision to refuse to grant the applicant, a citizen of Papua New Guinea, a Bridging E (Class WE) visa on character grounds. The applicant had been convicted of Assault Occasioning Actual Bodily Harm in company with domestic violence. The Tribunal was required to consider whether there was another reason why the visa should not be refused, despite the applicant not passing the character test.

The legal issues before the Tribunal were whether the applicant passed the character test, and if not, whether there were other considerations that warranted the exercise of discretion not to refuse the visa under section 501(1) of the Migration Act 1958 (Cth). In determining these issues, the Tribunal was required to consider the primary considerations outlined in Direction 90, including the protection of the Australian community, whether the conduct constituted family violence, the best interests of minor children, and the expectations of the Australian community.

The Tribunal found that the applicant did not pass the character test due to his conviction for assault occasioning actual bodily harm, which involved family violence against his partner. While acknowledging the seriousness of this offence and the potential risk to the Australian community, the Tribunal found that the risk of reoffending was low, given the applicant's remorse, acceptance of responsibility, and the presence of significant protective factors. Crucially, the Tribunal determined that the best interests of the applicant's two children weighed very substantially against refusing the visa, finding that their welfare would be significantly adversely impacted if the applicant were required to return to Papua New Guinea. The Tribunal also considered other factors, such as the expectations of the Australian community and Australian business interests, which were given neutral weight.

Ultimately, the Tribunal set aside the original decision and substituted a new decision, choosing not to exercise the discretion under section 501(1) of the Migration Act to refuse the visa. This decision was based on the significant weight given to the best interests of the applicant's children, which outweighed the concerns regarding his character.