Australian Immigration Daily News

Is the character test always fatal to a visa application? 

For example, suppose that you have a client who has a “substantial criminal record” within the meaning of section 501(6) of the Migration Act, as a result of having been convicted of an offence and having been sentenced to imprisonment for a period of 12 months, with the sentence suspended for 2 years? 

What if the offence was described as “assault occasioning bodily harm”? 

And what if that criminal record was not disclosed on a previous visa application? And was also not disclosed on the applicant’s incoming passenger card on several occasions when he entered Australia. 

In this scenario is the applicant doomed to failure? Is the best advice that you can offer a client who finds himself in this predicament to wish him good luck, throw yourself on the floor of your office and weep because there is nothing you can do? 

Well, surprising as it may seem, the actual result in the case described above was that, although the Department refused the visa application in question in the first instance, the Administrative Appeals Tribunal (Senior Member CR Walsh) decided that the refusal should be set aside, and that the discretion under section 501(1) of the Act should be exercised in the applicant’s favour, the matter remitted back to the Department and the visa application not be refused. 

The case was Kumar and Minister for Immigration and Border Protection (Migration) (2016) AATA 315 (16 May 2016).  

The background of the case was that the applicant is a citizen of Fiji. He was married to his first wife in Fiji in 1993, when he was 22 years old, and then divorced from her in 2002. 

The conviction for the offence of “assault occasioning bodily harm” arose out of an incident that occurred in Fiji in 2006. 

As no transcript of the proceedings from the Magistrates Court in Fiji was available, the AAT accepted evidence concerning the events surrounding the incident in the form of a statutory declaration from the applicant. 

In this statutory declaration, the applicant stated that he had been working at a small grocery ship that was owned by his brother.  It was his evidence that his then ex-wife appeared at the shop and sought to speak to the applicant, who was inside a “grilled space”.  The applicant’s story was that his ex-wife had asked him to unlock the grilled space, and that he had refused to do so. 

He further claimed that his ex-wife reported the incident to the police; that the police “forced” him to sign a statement that he had assaulted her; and that he had pleaded guilty to the charge following advice from his lawyer that a trial would be drawn out and expensive. 

Following this offence, in 2008, the applicant applied for a 457 visa to work in the car industry carrying out crash repair and car detailing work.  On his original 457 visa application, he did not disclose the conviction, nor did he disclose other convictions that were listed on a certificate from the Criminal Records Office of the Fiji police (unlawful use of a horse (!) which had occurred in 1995 and had resulted in a fine of $35 and “criminal intimidation”  (which arose from an incident in 2007 when the applicant claimed he had seen a “brawl” on a particular road in Fiji and had “stopped to inquire” as he had known other people involved in the incident – this resulted in a fine of $150 (the applicant claimed he had pleaded guilty to this charge because he had been mis-lead into believing that if he did so he would be acquitted). 

On the basis of his criminal conviction in Fiji for the offence of assault occasioning bodily harm against his ex-wife, the applicant conceded that he did not pass the character test. 

So what saved his application? 

The Tribunal assessed his case against the guidelines in Direction No. 65. 

It examined “the nature and seriousness” of the applicant’s conduct.  And it found that while assault occasioning bodily harm is a serious offence, it accepted that the fact that the applicant had received a suspended sentence indicated that the offence was at the lower end of the scale of seriousness.  Also of assistance to the applicant were the facts that the offence had occurred 10 years previously, and that the applicant had not engaged in similar conduct again. 

Further helping the applicant was the fact that the Tribunal concluded, in part due to the long period of time that had elapsed since the conviction, and in part due to positive character references from his second wife and his employer, that the risk that the applicant might re-offend was negligible. 

Further aiding the applicant was evidence that his wife and step-daughter had joined him in Australia, and the Tribunal made a finding that the best interests of the step-daughter would be adversely affected if his visa were to be refused and he were to be forced to leave Australia, as she would lose the benefit of his emotional and financial support. 

Lastly, the Tribunal concluded that it would be consistent with the expectations of the Australian community if the applicant’s visa were not to be refused, in light of the fact that he had been living and working in Australia for 7 years, had been gainfully employed throughout his time in Australia, had developed close community ties in Australia and presented very little risk of re-offending. 

So the moral of the story is that all character issues are not all created equal, and that failing the character test does not necessarily spell the end for the chances of a successful visa application. 

It all depends!*

* I would also like to point out some "unusual" features of this case:

1. The decision indicates that the visa applicant was taken into immigration detention in connection with the refusal of his visa application. I wonder: "On what basis?". The applicant was a lawful non-citizen on the basis of holding a 457 visa at the time that he applied for the 189 visa that was the subject of refusal. I do not follow why a lawful non-citizen who applies for a further visa that is then refused on character grounds would be subject to cancellation of their substantive visa. Yes, the extant susbstantive visa could possibly be subject to cancellation itself. Thoughts, anyone?

2. The AAT decision recites that the applicant's substantive visa (457) would have been subject to cancellation "by operation of law" upon the refusal of the 189 visa on character grounds. Again, I do not follow on what basis or under what provision of the Act. Does anyone know? I do not think that is a correct statement of the law. If it were then persons who hold substantive (temporary) visas could put themselves at risk by applying for further visas even if there might possibly be years of remaining validity on the existing visa (student, 457, etc.) Any ideas about this issue?

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