Lim and Minister for Immigration and Border Protection (Migration)

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 Yoong Xiang Lim a Regional Employer Nomination (Permanent) (Class RN) visa. The refusal was based on the applicant failing to pass the character test, as he had a substantial criminal record. The Tribunal had jurisdiction to review this decision.

The primary legal issue before the Tribunal was whether the applicant passed the character test, specifically whether the delegate had correctly exercised their discretion under section 501(1) of the Migration Act 1958 (Cth) to refuse the visa. This required the Tribunal to consider Ministerial Direction No 65, which outlines the factors to be taken into account when assessing a person's character, including the protection of the Australian community, the risk of reoffending, and other relevant considerations such as the impact on Australian business interests.

The Tribunal reasoned that while the applicant had a substantial criminal record due to being sentenced to two terms of imprisonment totalling 12 months, his conduct was not highly serious, involving non-violent offences committed while he was experiencing depression and under the influence of drugs. The Tribunal found the risk of the applicant reoffending to be low, noting his lack of further offences in Australia and his successful completion of probation in Singapore, evidenced by a certificate of clearance. The Tribunal also considered the applicant's failure to disclose his convictions on previous occasions, but gave him credit for his candour before the Tribunal and his eventual disclosure. Crucially, the Tribunal gave significant weight to the impact on Australian business interests, finding that the refusal of the visa would adversely affect Calypso Productions Pty Ltd, the applicant's sponsoring employer, as his role was essential and replacement would take approximately a year.

Consequently, the Tribunal was satisfied that the discretion to refuse the visa on character grounds should not be exercised. The decision of the delegate was set aside and substituted with a decision to grant the visa.