Character Refusal - Won at Tribunal

Character Test

The Department of Home Affairs may refuse or cancel your visa if you do not pass the character test. This discretion is exercised under s 501 of the Migration Act 1958 (the Act) that include variety of reasons why someone may not pass the character test, some of which includes the following:

  • because the person has a substantial criminal record

  • because the person may represent a danger to the Australian community

  • because the Minister is satisfied the person is not of good character due to their past and present criminal or general conduct.

There are also mandatory cancellations which normally applies to those visa holders who has been sentenced to 12 months or more of imprisonment or has been found guilty of sexual offences involving a child.

Such mandatory cancellations may be revoked if the visa holder can prove that they in fact pass the character test or has other strong grounds for revocation which can be found in s 501 of the Act.

Case Study

AAT (WON) - Nguyen and Minister for Home Affairs (Migration) [2018] AATA 4659 (19 December 2018)

The Delegate of the Minister for Home Affairs refused an application by Mr Nguyen for a Return (Residence) Visa as the delegate was not satisfied that the applicant passed the character test and decided to exercise the discretion provided under s 501(1) of the Migration Act 1958 to refuse the visa application.

The applicant lodged an application to the Administrative Appeals Tribunal (AAT) to have the delegate’s decision reviewed.

In this case, Mr Nguyen had a history of several offences, which included the following:

  • Convicted of the offence of possessing and trafficking heroin

  • Convicted of burglary and theft from shop

  • Convicted of the offence of Driving whilst suspended

Nonetheless, the Tribunal made the decision to:

  1. Set aside the decision of the delegate; and

  2. Remit the matter to the Department with a direction that the Applicant’s application for a Return (Residence) Visa not be refused under s 501 of the Migration Act 1958.

Reasoning of Decision

  • The Tribunal found that Mr Nguyen failed the character test, however, gave significant regard to the proportionality of offending and the sanction imposed by the Court. The Tribunal takes into account the relatively lenient treatment provided by the Court of the offending committed by Mr Nguyen despite having knowledge of his offending history.

  • The Tribunal also takes into account that Mr Nguyen has resided in the Australian community for the vast bulk of his adult life and that his familial ties are all strongly within Australia, and have been most of his adult life.

  •   The Tribunal also considers the professional opinions of Mr Nguyen’s treating doctor of the low risk of Mr Nguyen re-offending.

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