Australian Immigration Daily News

What if your client flunks the character test due to having a substantial criminal record in Australia, and has a checkered immigration history to boot? 

Does that mean that his Partner visa application is, as lawyers love to say: “Doomed to failure”? 

A decision that was handed down by the AAT last week tells us: “Not necessarily”! 

That decision came in the case of Latchman and Minister for Immigration and Border Protection (Migration) (2016) AATA 608 (15 August 2016). 

So what were the factual circumstances of the case, and how was it that the Partner visa application was salvaged from the initial refusal by the Department? 

The story was that the applicant had originally arrived in Australia in December 1985, when he was 18. 

And it was true that he did not have the “cleanest” immigration history. The applicant originally entered Australia under the authority of a Visitor Visa. That visa eventually expired and he remained in Australia as an unlawful non-citizen.  Prior to the Partner visa application that was the subject of the case, he had attempted to regularize his visa status through applications for a Temporary Business (Long Stay) visa and a Protection visa, both of which were refused. 

(One issue that is not discussed in the AAT’s decision is how the applicant was able to persuade the Department and/or the Tribunal not to apply Schedule 3 criteria – it’s simply not clear how this issue was dealt with, if at all). 

What about the applicant’s criminal history, and his failure to satisfy the character test? 

The background here, as reviewed in the AAT’s decision, was that the applicant had experienced an “unsettling childhood” in Fiji, and had suffered physical and sexual abuse as a minor.  The unresolved psychological trauma from these childhood incidents led the applicant to become addicted to illegal drugs, and this addition apparently in turn led to his offending. 

It appears from the AAT’s decision that the offence that caused the applicant to fail the character test  was “related to obtaining money by deception”.  This charge was dealt with in 2003, and the applicant was released from prison in 2006 (it is not stated in the AAT’s judgment how long the actual prison sentence was).  Before being incarcerated, the applicant had a record of other offences, including  breaching an apprehended violence order in 1997 and an assault charge in 1999. 

So what turned the tide in the applicant’s favour? 

It surely helped him that he had entered a drug rehabilitation program while he was in prison, and that he had also been engaged in employment training while in prison. 

It also was in his favour that he had been out of prison for a period of 10 years by the time his Partner visa case came before the AAT, without committing further offences; that he had undertaken psychological counseling after his release from prison; that he had compiled a strong employment record, and was able to provide evidence from his employer that he was a valued and trustworthy employee whose contribution to the business was valued; and that he was also able to produce strong supporting evidence from a cousin and a friend. 

All in all, this positive evidence prompted the Tribunal member to conclude that the applicant had made a “remarkable and long-standing transformation/rehabilitation”.  

Further working to assist the applicant in the Tribunal’s view was that the offence that had led to the applicant’s imprisonment was not a crime of violence, and that since 10 years had passed since the time he had been released, he was not seen to pose a risk of harm to the Australian community.  The Tribunal member also took into account the negative impact that refusal of the visa application would have had on the applicant’s partner and on his employer’s business. 

This case surely seems to be one where the merits review process before the AAT functioned effectively.  Although the Department’s decision record is not discussed in the AAT’s judgment, it surely seems like this is a case where the Department’s reviewing officers went no further than to determine that the applicant did not pass the character test due to his having a substantial criminal record, and on that basis “mechanistically” determined to refuse the Partner visa application. 

The applicant was surely fortunate that his case came before a Tribunal member who reviewed the factual circumstances in a careful, considered and compassionate manner. 

So it all goes to show that all is not lost after an unfavourable initial decision from the Department. 

If the fight is carried forward to the AAT, a refusal can be overcome, and in spite of apparent obstacles, even in the form of the character test, there can in the right circumstances be a happily ever after for the client/applicant.

 Email: This email address is being protected from spambots. You need JavaScript enabled to view it.