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

This matter concerned an appeal by WWXF against the Minister for Immigration, Citizenship and Multicultural Affairs' refusal to grant a Temporary (Partner) Class UK visa. The visa was refused under section 501(1) of the Migration Act 1958 (Cth) because the applicant did not pass the character test due to having a substantial criminal record. The decision under review was affirmed by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant passed the character test and, if not, how the discretion to refuse the visa should be exercised, particularly in light of Ministerial Direction No. 90. The Tribunal was required to consider the primary considerations outlined in Direction 90, including the protection of the Australian community, the seriousness of the offending and future risk, and the expectations of the Australian community, as well as other considerations such as international non-refoulement obligations and the extent of impediments if removed.

The Tribunal reasoned that the applicant's criminal conduct, involving the supply of significant quantities of cocaine and family violence, was very serious. It found that the risk of reoffending, while potentially low, continued to exist, and that any future criminal conduct by the applicant could have significant adverse repercussions for the community. The Tribunal also considered that the expectations of the Australian community would favour a visa refusal. Furthermore, the applicant's past non-compliance with Australian laws, including working without permission and failing to pay taxes, indicated a general disregard for the law, which weighed against granting the visa. The Tribunal concluded that the protection of the community weighed heavily in favour of refusing the visa, and that the discretion to refuse was enlivened and should be exercised. The Tribunal found that the best interests of children were not adversely affected by the refusal and that Australia's non-refoulement obligations would not be breached.