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Tribunal: Deputy President Stephen Boyle

A delegate of the Minister for Immigration and Border Protection refused the applicant a Partner visa. On 27 April 2018, the Administrative Appeals Tribunal affirmed the decision.

The applicant was an Australian Citizen and the sponsor of the visa applicant for the purposes of the partner visa. The visa applicant was a citizen of India who had not previously travelled to Australia. The visa applicant had been convicted of multiple serious sex offences against an 11 year old girl in the United States of America. He was imprisoned for these convictions in March 2001 for 10 years. He was released on parole in March 2011 and was subsequently deported to India. On 15 January 2014, the visa applicant and the applicant (sponsor) were married in India and on 3 June 2014 the visa applicant lodged an application for a partner visa based on his relationship with the applicant.

Under section 501 of the Migration Act 1958 (the Act) the Minister, or his delegate, may refuse a visa if the holder has a substantial criminal record. This is part of a character test. It was not in contest that the applicant failed the character test. The applicant served 10 years in prison and therefore had a substantial criminal record within the meaning of section 501(7) of the Act.

A direction provided by the Minister of Immigration and Border Protection (now Minister for Home Affairs) guides the Tribunal when reviewing decisions to refuse a visa. The ministerial direction provides certain factors the Tribunal must take into account when reviewing the decision. These factors are split into ‘primary’ and ‘other’ considerations. The ministerial direction requires the Tribunal to consider how the circumstances apply to each of the considerations, determining the amount of weight to be given to each and then balancing the considerations to come to a decision. Primary considerations should generally be given greater weight than the other considerations.[1]

The first primary consideration relates to the protection of the Australian community. The Tribunal found that this consideration weighed heavily in favour of the visa applicant not being granted a visa due to the nature and seriousness of his conduct and the unacceptable risk any re-offending would pose to the Australian community. The Tribunal based this conclusion on the fact the visa applicant did not accept any responsibility for his criminal conduct and that he has undertaken no effective rehabilitation.

The second primary consideration concerns the best interests of minor children. The visa applicant had a biological child with the applicant aged three and a step-child (daughter of the applicant) aged 15, both of whom live in Australia. The Department of Immigration and Border Protection (the Department) agreed the best interests of the children weighed in favour of the visa being granted, however the Tribunal accepted that this was only marginal and was far outweighed by the other primary considerations.

The Tribunal must consider the expectations of the Australian community in the third primary consideration and the Tribunal concluded that the crimes of which the visa applicant had been convicted were such that the Australian community would expect that a person convicted of such crimes should not be granted a visa. The Tribunal found that this consideration weighed against the granting of a visa.

The only other consideration that the Tribunal took into account was the impact on the visa applicant’s family members. This was primarily the applicant, who stated she would not go back to live in India if the visa was not granted. The Department and the Tribunal accepted that this factor weighed in favour of the granting of the visa but concluded that it was outweighed by the need to protect the Australian community and the expectations of the Australian community.

The Tribunal affirmed the Department’s decision to refuse the Partner visa.

Read the full written decision on Austlii.

[1] Direction 65, paragraph 8(4)