AAT – Cancellation Under s501 – Character

Case summary

Sekhon and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 2916 (13 September 2023) (austlii.edu.au)

The individual in question is a 34-year-old Indian citizen who has spent most of his adult life in Australia. He arrived in Australia in late 2008 to pursue his studies, primarily in fields such as commercial cookery, hospitality, and business, but has primarily worked as a taxi driver. He is married to an Indian citizen referred to as Ms. KB, who has also studied and worked in Australia under temporary visas. They have two children under the age of six, both born in Australia, and the Applicant and his children depend on Ms. KB’s visa application for an Employer Nomination Scheme (subclass 186) visa.

The Applicant’s history includes a 2012 indecent assault conviction, a 2013 marriage to Ms. KB, a subsequent 2013 conviction for indecent assault, a failure to disclose this conviction in visa applications, and warnings from the Taxi Services Commission regarding his driver accreditation. Additionally, there were omissions of his conviction on an Incoming Passenger Card upon his return to Australia in 2016.

A delegate of the Minister advised the Applicant in April 2023 that his visa application was under consideration for refusal, citing his 2013 conviction and failure to disclose it in previous applications. In June 2023, the delegate refused the visa application under section 501(6)(d)(i) of the Act, stating concerns about the risk of future criminal conduct. The Applicant sought a review of this refusal by the Tribunal in July 2023.

MINISTERIAL DIRECTION 99

The Tribunal is required to adhere to Ministerial Direction 99, which was enacted under section 499(1) of the Act and became effective on March 3, 2023. This directive guides the Tribunal’s decision-making process regarding whether to revoke a mandatory visa cancellation. It lays down key principles, including Australia’s right to determine whether non-citizens of character concern should be allowed to enter or remain in Australia, with an emphasis on law-abiding conduct and respect for Australian institutions. It also emphasizes the importance of protecting the Australian community from criminal conduct.

The Directive provides a framework in which decision-makers should weigh primary considerations like the protection of the Australian community from criminal conduct, the nature of ties to Australia, and the best interests of minor children in Australia. It also outlines additional considerations such as legal consequences, impediments upon removal, impact on victims, and Australian business interests.

FINDINGS: DOES THE APPLICANT FAIL THE CHARACTER TEST?

The Applicant’s character is under scrutiny, and the Tribunal must consider both positive and negative factors in determining whether he fails the character test:

Positive factors include statements from relatives and friends describing him as family-oriented, thoughtful, hard-working, and helpful. These statements also suggest that his offending behavior was isolated and out of character. Furthermore, the Applicant has engaged in volunteering and participation in his ethnic and faith community, reflecting positively on his character.

The Applicant has spent most of his adult life in Australia, during which time he has been consistently employed and law-abiding. There is no evidence to suggest that he has been involved in criminal activities in India.

Regarding his 2013 indecent assault conviction, it is noted that he received a non-custodial penalty, which is at the lower end of sanctions for such an offense. He has completed his community corrections order and has not reoffended since.

However, negative factors include the Applicant’s failure to disclose his 2013 conviction in previous visa applications and his failure to notify the Taxi Services Commission of charges against him in 2012. There was also an omission of his conviction in an Incoming Passenger Card in 2016.

The Applicant’s continued denial of his criminal conduct, even though he pleaded guilty, is also a negative factor. The Tribunal does not accept his claim that he informed the Taxi Services Commission about his conviction in 2013.

Despite these negative factors, the Applicant has lived a law-abiding life in Australia for the past decade, has a low risk of committing further sexual crimes, and understands the adverse consequences of reoffending due to his prior experiences, including visa cancellation and detention.

DECISION

The Tribunal is satisfied that the Applicant does not fail the character test under section 501(6)(d)(i) of the Act. Therefore, the grounds for visa refusal under section 501(1) are not applicable, and the Tribunal decides not to refuse the Applicant’s visa under section 501(1) of the Act. The Tribunal’s decision sets aside the previous refusal and replaces it with a decision not to refuse the visa application.

Written by Ross Ahmadzai

6 Oct, 2023

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