Tausem and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

This matter concerned an application for a return visa by the Applicant, with the Respondent being the Minister for Immigration, Citizenship and Multicultural Affairs. The core dispute revolved around whether the Applicant passed the character test as defined by section 501(6) of the Migration Act 1958 (Cth). The case was heard by S Barton M in the Perth Registry.

The legal issues before the court were twofold: firstly, whether the Applicant satisfied the character test, and secondly, if he did not, whether the discretion under section 501(1) of the Migration Act to refuse the visa should be exercised. The character test, relevantly for this case, requires consideration of whether there is a risk that the person would engage in criminal conduct in Australia, as stipulated in section 501(6)(d)(i). The court also considered Direction No 90, which provides guidance on the exercise of powers under the Act.

The court's reasoning focused on assessing the Applicant's risk of reoffending. It noted that the Applicant had a limited criminal history, comprising one recorded offence of domestic violence. While acknowledging that risk factors for this offending had been treated, the court found that the need for further treatment indicated a likelihood of reoffending that was above a minimal or trivial level. However, the court gave significant weight to the broader family context and the deterrent effect of the severe consequences the Applicant would face if he reoffended, including permanent separation from his family and diminished financial capacity. The Applicant's wife's awareness of these consequences and her willingness to report any future offending, supported by her family, were considered significant deterrents. The court also took into account the Applicant's understanding of these ramifications and the evidence from his wife and a psychologist that indicated a reduced likelihood of reoffending.

Ultimately, the Tribunal was satisfied that the Applicant's risk of reoffending was no more than minimal or remote, and did not rise to a level that would cause him to fail the character test. Consequently, the reviewable decision to refuse the visa was set aside and substituted with a decision that the Applicant passes the character test.