Satisfying the Character Test for an Australian visa

Case 1

The Case of He and Minister of Immigration, Citizenship, Migrant Services and Multicultural Affairs exemplifies how section 501 of the Migration Act practically operates. Section 501 states that the Minister may refuse to grant a visa to a person if he/she is not satisfied that the person passes the character test. Conduct that may affect a person’s ability to satisfy this test most commonly includes criminal conduct, actions that represent a danger to the Australian community or anything else that indicates a significant risk to society. It is important to note that if a person does not satisfy the character test, the Minister (or delegate decision maker) has discretion as to whether they will or will not refuse the visa. The case below exemplifies how this discretion is exercised.

The Case of He and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 797 (8 April 2021) 

Facts:

The facts of the case involved an applicant who had previously lived in Australia as a permanent resident from 2015-2019. During this time the applicant was convicted of numerous domestic violence offences including; contravening family violence intervention orders, counts of unlawful assault, a count of assaulting police and recklessly causing injury among other charges.

In late 2019 the applicant returned to his home country of China where he stayed until the COVID-19 pandemic threatened to impede his ability to return to Australia. At this point, the applicant sought to apply for a Resident Return (permanent) visa.

The Issue:

This Resident Return visa was refused on the basis of the applicant not satisfying the character test in s 501(1)(6)(d)(i). The applicant appealed this decision to the AAT.

The Tribunal’s Finding:

The tribunal was satisfied that the applicant did not satisfy the character test. It was agreed that the man still was likely to commit offences and had unresolved anger management issues. However, regardless of whether an applicant fails to satisfy the character test, a refusal of visa on this basis is discretionary. Therefore, the AAT considered other factors.

For example, the Tribunal accepted the applicants wife’s evidence that she would suffer significant hardship in raising her minor son if she did not have support of her husband (the applicant). It was also found that the applicant played a positive role in his sons life and maintained a close parental relationship. It was seen as the sons best interests that the applicant should be granted the visa allowing him to return to Australia permanently.

It is important to note at this time something called Ministerial Direction No.79 is in force. This direction sets out a guideline on what factors should be ‘primary considerations’ and what factors should be secondary or ‘other considerations’ when a decision maker is deciding to refuse a visa. Among the primary considerations outlined were the best interests of minor children in Australia.

The Tribunal decided that the reasons to grant the visa outweighed the reasons to refuse the visa and therefore the applicant had the original decision overturned.