Australian Immigration Daily News

What if a visa applicant fails the character test because the applicant has a substantial criminal history.

Does that mean the visa application is certain to be refused, and that there is no hope of getting the refusal overturned in the Administrative Appeals Tribunal?

Well, a decision that was handed down by the Tribunal in early March – Hodson and Minister for Immigration and Border Protection (Migration) (2017) AATA 254 (1 March 2017) – illustrates that this type of situation is not “hopeless”.  It is possible for an applicant to succeed before the Tribunal despite failing the character test.

As the saying goes, it all boils down to the applicant’s individual circumstances (and, one might add, to how well the case is presented to the Tribunal!).

On the face of the situation, it appears that the applicant would have had a difficult time getting his visa application – for a student visa – over the line.

It was conceded that he did not pass the character test, due to his criminal history in the UK before coming to Australia.

That history was described by the Tribunal as falling into three “periods”, which extended from 1997 – 2013. The first, or, as the Tribunal described it, “early” period of offending involved “minor level” offences involving theft and motor vehicles, including a “dangerous driving” offence arising from his driving a vehicle while uninsured and unsupervised on a “learner’s license”. 

The second, and most serious, phase of his offending, the “middle part” occurred during the period from 2003 –2004. His record during this period involved  multiple counts of possession of unlawful drugs and three counts of assault, for which he was sentenced to imprisonment for a total of 6 months.

And the last part involved an incident involving his driving his motorcycle while uninsured and disqualified, and using another person’s ATM card to withdraw money for his own use. These offences, which occurred in 2012 and 2013, resulted in further prison sentences totaling an additional 8 months.

So, what factors “saved” the applicant’s visa application from being “sunk” by the character test?

Essentially, the applicant was able to demonstrate to the Tribunal’s satisfaction that he had “turned his life around” since arriving in Australia.

The story was that the applicant had originally come to Australia in 2014 under the authority of an Electronic Travel Authority visa.  The purpose of his travel to Australia was to visit with his mother and step-father, who had previously migrated to Australia so he could provide care for the step-father, who had become dangerously ill with a terminal disease, and support for his mother. While in Australia, he had met and formed a relationship with an Australian partner and had undertaken a course in carpentry.

So, these circumstances assisted the applicant in demonstrating to the Tribunal’s satisfaction that:

1) There was a low likelihood that the applicant would reoffend, especially in view of the fact that the applicant’s history of offending in the UK was attributable in part to the applicant’s “dysfunctional” relationship with his former wife and their “recourse to substances”, and in view of the strong and loving relationship that the applicant had formed with his Australian partner and her children, the support of his family, and his prospects for employment.

2) The Tribunal’s finding that it would be in the best interests of the children of the applicant’s partner that he be granted the visa, as there was evidence  in particular that the applicant’s relationship with his partner’s daughter had assisted materially in helping her to control behavioural problems;  and

3) That it would be consistent with the expectations of the Australian community that he be granted a visa notwithstanding his prior criminal history, in view of the evidence that the applicant truly had “turned his life around” since coming to Australia through the strong relationship with his partner, that he had sought further job qualifications by gaining a Certificate III in carpentry at very substantial cost, that he had excellent work prospects, and strong character references from people who attested that they were aware of his prior criminal history.

So, this is a case that has a very happy outcome, all the more so since the applicant had been held in immigration detention since the time of refusal of his student visa application.

It’s lovely to be able to end the week with such a positive story!!!!!!!!!!!!

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