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The Visa Applicant in He and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 797 (8 April 2021) was refused his permanent residence (PR) visa (Resident Return Visa) on the basis of his criminal convictions relating to domestic violence. The Tribunal affirmed the finding that he did not satisfy the character test but on the basis of discretionary factors remitted the decision back to the Department to exercise its discretion to grant the visa despite not satisfying the character test. 

Facts

The Visa Applicant (who was previously an Australian PR) was convicted of the following domestic violence offences:

  1. 2012 – contravene family violence intervention order with intention to cause harm/fear – he was sentenced to a good behaviour bond; 
  2. 2014 – 2 counts of unlawful assault, 2 counts of contravene family violence interim intervention order and 5 counts of contravene family violence intervention order – he was sentenced to various terms of imprisonment to be served in part concurrently. Effectively, his effective sentence was 90 days of imprisonment; 
  3. 2015 – one count of contravene family violence interim intervention order which was ultimately dismissed due to language difficulties and that he had been in custody for over a year without bail on this charge; 
  4. 2015 – one count of assaulting police which resulted in a $1,000 fine; 
  5. 2015 – ‘recklessly cause injury’, ‘contravene family violence intervention order – intend harm/fear’, ‘contravene family violence final intervention order’, ‘unlawful assault’, and ‘behave in offensive manner in public place’, for which he was sentenced to 99 days of imprisonment and put on a Community Corrections Order for 6 months. 

After he was released from prison in 2015, he converted to Christianity and lived in Australia without any troubles as a PR. He returned to China in September 2019 as his father was seriously ill (where his father later died). He then remained in China until COVID-19 pandemic which affected his ability to return to Australia. 

He applied for the Resident Return (permanent) visa which was refused on the basis of not satisfying the character test of s 501(1)(6)(d)(i) – that he had a risk of engaging in criminal conduct if he were allowed to enter or remain in Australia. 

Tribunal Finding

Despite having supporting character references, witness statements from his daughter and wife, years that had lapsed since his last conviction and a positive psychologist’s report, the Tribunal found that his propensity to commit offences were not simply due to his domestic dynamics. The Tribunal was not satisfied that his underlying anger management issues were properly resolved (or that there was any evidence of such) and therefore there was still an underlying risk of criminal violent conduct should he become anxious or angry. There was a ‘more than a minimal or remote chance’ of the risk of criminal conduct being engaged. Thus, his PR visa was rejected and the Tribunal agreed up until this point. 

A refusal on the basis of not satisfying the character test is discretionary. Therefore, the Tribunal must then still consider discretionary factors on granting the visa despite not meeting the character test. 

  • According to the current directions, domestic violence crimes are seen as very serious. Luckily for him, at the time of decision, Ministerial Direction No. 79 was still in effect which was still better for him even though it still placed emphasis on viewing domestic violence crimes as serious. 
  • Despite having no criminal convictions, his conduct was not unblemished. There were police records that he had lied to the police multiple times in phone calls to get them to attend their residence to attend to alleged breaches of the violence order and verbal/physical arguments. This pertained up until August 2019 shortly before he left Australia. 
  • He had also had many driving offences, breaches of the violence order, confrontations with the police, false reporting etc. which showed that he had a disregard for the law and disrespect for enforcement. 
  • The Tribunal found that his conduct was serious by nature and involved significant harm to the Australian community. There would be an expectation of the Australian community that such people would not be allowed to come to or remain permanent in Australia. 
  • He had maintained close parental relationship with his minor son throughout despite the periods of incarceration and his departure to China. There is no doubt that he would play a positive parental role if he were allowed to return to Australia. It was found to be in the best interests of the minor son should he be granted the PR visa to return to Australia permanently. 
  • The Tribunal accepted his wife’s evidence that there would be significant hardship suffered if she did not have the support of the applicant in the upbringing of their minor son. 

In considering the Ministerial Direction No. 79, the Tribunal found that the factors weighing in favour of granting the visa despite he did not meet the character test for a series of domestic violence and other violence offences sufficiently outweighed the factors against the granting of the visa. 

He definitely had a serious risk that his PR would be in effect ‘revoked’ as he would not be granted another PR visa to return to Australia. However, considering all the factors prescribed by law, he was luckily saved and the Tribunal found in his favour to still be granted the visa despite his past criminal offending. 

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