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

This matter concerned an appeal by Mr. Wojtas against a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse him a visa. The refusal was based on the character test, specifically concerning a foreign conviction for a sexually based offence involving a child. The Administrative Appeals Tribunal was required to consider whether the conviction and sentence should be disregarded under s 501(10) of the Migration Act 1958 (Cth), and if not, whether to exercise the discretion to refuse the visa under s 501(1) of the Act, taking into account the considerations outlined in Direction 79.

The primary legal issues before the Tribunal were whether the Applicant passed the character test, and if not, whether the discretion to refuse the visa should be exercised. This involved determining whether a foreign conviction, which appeared to have been expunged or nullified according to Polish records, should be disregarded under s 501(10) of the Act. If the conviction was not disregarded, the Tribunal had to weigh various factors, including the nature and seriousness of the offending conduct, the risk of reoffending, the best interests of the Applicant's child residing in Australia, and community expectations, as stipulated in Direction 79.

The Tribunal found that while the Applicant had been sentenced to a term of imprisonment exceeding 12 months, the effect of s 501(10) of the Act required consideration of whether the conviction had been quashed or otherwise nullified. Although documentary evidence suggested a change in the Applicant's Polish criminal record, the Tribunal found the evidence insufficient to definitively establish that the conviction was nullified or pardoned in a manner that would require its disregard under s 501(10). Consequently, the Tribunal concluded that the Applicant did not satisfy them that he passed the character test. However, in exercising the discretion to refuse the visa, the Tribunal placed significant weight on the best interests of the Applicant's child and moderate weight on the absence of any cogent risk of reoffending, given the suspended sentence and the Applicant's subsequent conduct. On balance, the Tribunal determined that the visa should not be refused.