Four convictions – what does this mean for your Australian visa?

Character Test

The Australian government require that all visa applicants to meet character requirements. The character requirements are set under Section 501 of the Migration Act 1958. According to the current policy, the immigration department will not grant an applicant a visa if “there is a risk” that the person will engage in criminal conduct; harass, molest, intimidate or stalk another person; vilify a segment of the Australian community; incite discord in the Australian community; or be a danger to the Australian community. The department will make a decision on whether an applicant passes the character test based on whether an applicant has a substantial criminal record and whether the person has good general behaviour.

NSBB and Minister for Home Affairs (Migration) [2019] AATA 59 (23 January 2019)

Recently, the Administration Appeals Tribunal has decided to set a decision under review for a case involving character issues and decided that the applicant not to be refused a partner visa under s501 of the Migration Act.

Fact

The applicant moved to Australia when he was 21 and used false identity documents on four occasions to obtain an Australian passport. The applicant remained in Australia for the next 28 years. During his residence in Australia he married a Fijian wife. The wife became Australian citizen after taking residence in Australia. The couple has two children then aged 17 and 26. The applicant was convicted of four federal offences and received a suspended four-month imprisonment term for each offence.

Evidence considered

In reaching its decision in favour of the applicant, the tribunal considered the following evidence:

• There was no history of other criminal offending of the applicant;

• The best interest of the applicant’s daughter who was a minor;

• The likely impacts on the Australian family members;

• The Applicant’s wife has health issues;

• The applicant has been employed and paid taxes during the majority of his life in Australia;

• The applicant has never caused personal harm to others.

Take-home messages

If your visa application is to be refused or visa to be cancelled on character ground, it is very important that you address the invitation for comments from the department carefully with strong evidence to support your case. If you are physically in Australian at the time of visa refusal or cancellation, you may have a right to appeal your case at the tribunal. The tribunal will consider your case afresh and may substitute a decision which would be in favour of you. If you would like professional help when preparing your applications and framing arguments, please book a consultation with one of our experienced migration agents today.

Disclaimer: The information provided herein is of a general nature only and does not constitute immigration advice. For more detailed and case specific information or advice, please contact SCA Connect.

Photo by Derek Thomson on Unsplash