Author: Jennifer Samuta

What if a visa applicant fails the "character test" under section 501 of the Migration Act because the applicant has a substantial criminal history? Is there any hope for a successful visa application? The good news is there is!

I recently represented a UK citizen client at the Administrative Appeals Tribunal (AAT) who was initially refused a Student visa by the Department of Immigration (DIBP) because he failed the "character test" - he had convictions in the UK that had cumulative sentences of imprisonment of more than 12 months.  My client was notified of the visa refusal by Australian Border Force at his home address early one morning, and immediately taken to immigration detention. I lodged the AAT appeal within the 7 day deadline and he remained in immigration detention for the duration of that appeal process.

I'll canvas this blog by saying from the outset that there is a happy ending to this case - my client was successful in his appeal to the AAT and he eventually was released back into the community to his mother, partner and step-children!

SO HOW DID HE FAIL THE CHARACTER TEST?

My client's history was described by the Tribunal as falling into three “periods”, which extended from 1997 – 2013.

The earlier period of offending involved “minor” 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 middle and most serious phase of his offending 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.

The more recent and later part of his offending 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, resulted in further prison sentences totaling an additional 8 months. 

Therefore, his sentences of imprisonment totalled 14 months and he consequently failed the character test (this was conceded to by the parties and their representatives during the AAT hearing).

SO, HOW DID WE WIN AT THE AAT?

When my client first came to me he was open about his past offending history, the reasons for it, his decision making in coming to Australia, and the significant ties to Australia he had since developed. After listening to his story, it was clear that he had "turned his life around" since arriving in Australia, and it quickly became apparent that we needed to satisfy the Tribunal of this to have any hopes for success.

He 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 his mother and step-father (both permanent residents of Australia), so he could provide care for his step-father, who had become terminally ill (and sadly later passed), and support for his mother. While in Australia, he met and formed a relationship with an Australian citizen partner and had successfully undertaken a course in carpentry, and had real career prospects including a potential business.

In these circumstances, we made representations that demonstrated to the Tribunal’s satisfaction that:

1) There was a low likelihood that my client would reoffend , especially in view of the fact that my client's history of offending back in the UK was partly attributable to my client's volatile relationship with his former wife and their recourse to substances. In contrast, my client had since his arrival into Australia developed a strong and loving relationship with his Australian partner and her children. Added to the significant support of his family and friends available to him in Australia, and his prospects for employment, it was contended that his lifestyle was very different to his circumstances in his previous country of residence.

2) It would be in the best interests of his step-children that he be granted the visa, as there was convincing evidence that my client's relationship with his partner’s minor daughter had assisted materially in helping her to control behavioural problems - and in his absence her mental health and behavioural problems deteriorated;  and

3) That it would be consistent with the expectations of the Australian community that he be granted a visa despite his prior criminal history, in view of the evidence that the he 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  were aware of his prior criminal history.

LESSONS TO BE LEARNT

This case is significant because it provides much needed hope in what is an area of migration law that is often deemed as being "hopeless".

Of course, every case is different to the next but one thing remains consistent across the board: competent legal representation in visa cancellation matters can be the difference between a visa grant and visa refusal. But don't just take my blog for it, refer to a blog written by Migration Alliance here. The articles author there writes "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!)". I might just add, similar sentiments of which were expressed by Senior Member Tavoularis at the conclusion of the hearing.

Reputation aside, the point of this blog is not to blow my own horn, but to make some racket about there being hope for those who fail the character test. 

The other point to my blog is to highlight the importance of obtaining legal advice and representation, particularly complex matters such as visa cancellations based on character. It is very important that you engage a migration lawyer or registered migration agent - but not just anyone. Engage a professional who is capable of understanding your circumstances, perhaps empathising with your past and present situation, and properly portraying your story (on its merits and with reference to the applicable law) to the decision maker because failing the character test is "not the end of the story"; there are defined considerations that must be made by every decision maker (delegate of the Minister for Immigration and the AAT). For any prospect for success, your story needs to be told in context of those considerations and the law.

You can read the decision here.