WCJS and Minister for Immigration and Border Protection (Migration)

This matter concerned an appeal by WCJS against a decision by the Minister for Immigration and Border Protection to refuse a partner visa on character grounds. The applicant had been convicted of common assault and domestic violence, resulting in a 12-month good behaviour bond. The core of the dispute revolved around whether the applicant posed a risk of reoffending and whether the Minister's discretion to refuse the visa on character grounds had been appropriately exercised. The decision was made by Professor M J McGrowdie, Senior Member.

The Tribunal was required to determine whether the applicant failed the character test, and if so, whether to exercise the discretion under section 501(1) of the Migration Act 1958 to refuse the visa. This involved assessing the risk of reoffending, the protection of the Australian community, community expectations, and the impact on family members. The Tribunal also considered, but ultimately did not find to be a significant consideration, Australia's international non-refoulement obligations.

Professor McGrowdie reasoned that while the applicant had transgressed the law, psychological reports indicated a low risk of reoffending. The Tribunal considered the applicant's current circumstances, including his relationship, aspirations, and achievements, concluding that the risk of reoffending was not such as to lead to the conclusion that the applicant did not satisfy the character test. Even if the applicant had failed the character test, the Tribunal found that the discretion to refuse the visa would not have been exercised against the applicant, given the mitigating factors and the guidance provided in Ministerial Direction 65.

Accordingly, the Tribunal set aside the delegate's decision and revoked the cancellation of the applicant's visa, determining that the visa should not be refused on character grounds.