The Tribunal Decided the Applicant Not Be Refused the Partner Visa on Character Grounds - Why?
The Applicant applied for a partner visa but was refused by the department on the ground that the Applicant has not passed the character test, as the Applicant has a history of using false identity in Australia. However, the Tribunal set aside the decision of the department.
Background of the Partner Visa Applicant
The Applicant is a 55-year-old citizen of the Republic of Fiji. He moved to Australia at the age of 21 and adopted false identity. He obtained an Australian passport on four occasions using false identity. He remained in Australia unlawfully and married a Fijian citizen using false identity. The Applicant’s Fijian wife moved to Australia using the Applicant’s false identity, took up residence and became Australian citizen. The Applicant and his wife raised two children in Australia who are now aged 17 and 26 respectively. Both children are born and raised in and citizens of Australia.
The use of false identity was discovered by the authorities 28 years after the Applicant’s arrival in Australia. The Applicant was convicted of four federal offences and received a suspended four-month imprisonment term for each offence, placed on two-year good behavior bond, fined and ordered to pay costs. The Applicant’s passport was cancelled. The Applicant then made an application for migration to Australia as a partner, as his wife’s status in Australia was lawful.
How Did the Tribunal Decide to That the Applicant Not Be Refused the Partner Visa on Character Grounds?
The Administrative Appeals Tribunal (“the Tribunal”) set aside the decision of the department and in substitution decided that the Applicant not be refused partner visa on character grounds. The Tribunal considered whether there is a risk that the Applicant will engage in criminal conduct in Australia. There was no history of other criminal offending. The Tribunal also take into consideration the following:
(a) mitigating circumstances
(b) protection of the Australian community
(c) whether Australian community would expect refusal of visa application
(d) the best interests of applicant’s daughter who is a minor
(e) the impact on family members especially the Applicant’s wife who has health issues
(f) the Applicant was employed and paid taxes during majority of his life in Australia and has not caused personal harm to others
The Migration law allows a visa to be refused if a person does not pass the character test. However, a decision maker must consider a wide range of factors before refusing or cancelling. The above case is an example where the Tribunal take into consideration different factors to determine whether the Applicant pass the character test.