Substantial Criminal Record – Imprisonment

 
 

[501] (6)      For the purposes of this section, a person does not pass the character test if:

(a)      the person has a substantial criminal record (as defined by subsection (7));

[501] (7)      For the purposes of the character test, a person has a substantial criminal record if:

(a)      the person has been sentenced to death; or

(b)      …..; or

(c)      the person has been sentenced to a term of imprisonment of 12 months or more; or

(d)      the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

As stated above as far as onshore visa applicants are concerned, the mandatory cancellation regime has reduced the scope of this provision to cases where the person is not serving a custodial sentence. For example where a person is sentenced to a suspended sentence of one year. However a person who received a suspended sentence is unlikely to have a visa refused or cancelled on character grounds.

But the non-mandatory character provisions apply every time someone applies for a visa. So if a person held a temporary visa and committed an offence and was sentenced to one year imprisonment and had their visa cancelled under the mandatory cancellation regime and then successfully applied for a revocation of that cancellation, then the character test would re-apply when the person wanted to apply for another temporary visa or a permanent residence visa.  So the character test applies each and every time the person applies for a visa.

This test will still apply to any off shore visa applications.

A good example is Re Locke [2004] AATA 123 (10 February 2004).  An applicant’s husband was refused a spouse visa offshore because he had been sentenced to 18 months imprisonment for fraud.  He had a series of other offences which were neither minor nor very serious.  The wife had all her family in Australia.  In this case the husband gave evidence by telephone from the UK. Here is how the AAT decided in her favour:

  • In deciding whether to exercise the discretion to not exercise the power to refuse to grant the visa to Kenneth Locke, the Tribunal makes the following findings:
    • He has never been convicted of any crime involving personal violence. He does not appear to present any potential physical harm to anyone in Australia.
    • The fraud and theft convictions were treated by the sentencing judge as serious crimes, and, with respect, so they should have been. However, the events occurred over 12 years ago and arose partly out of the unusual matrimonial position that Kenneth Locke found himself in.  Although it is always difficult to predict the chances of recidivism, it would seem to the Tribunal that the chances of these crimes being repeated by Kenneth Locke in Australia to be fairly remote.
    • On the material before the Tribunal, Kenneth Locke seems to have lived as a model citizen for the last seven years.
    • There are compelling compassionate grounds for allowing the situation whereby Sheila Locke can live close to her children and grandchildren. It is all very well to say that she could live in England and fly out to visit them from time to time.  However, that is not really satisfactory.  It is expensive.  Sheila Locke is now 56 years of age and she will not be able to keep commuting to see her family when she gets a few years older.
  • The Tribunal decides that on balance the discretion should be exercised such that despite being satisfied that refusal to grant the visa is justified, the power to refuse to grant the visa should not be exercised.

In Staffieri v MIAC [2008] AATA 321 (18.4.08 2008), the AAT found that a drug addict who had committed many crimes to feed his habit had nevertheless reformed.  In this matter the AAT made some useful observations about expectations of the Australian community:

  1. The Australian community expects non-citizens to obey Australian laws – including its immigration laws. Community members would be concerned if immigration authorities failed to exercise real caution before admitting a person with a serious criminal history. As Mr Brendecke observed, a person who did not know Mr McIntosh and who only read the details of his history in the newspapers might be surprised at a decision to allow him to come to Australia.
  2. How does one assess the expectations of the Australian community? That community is comprised of a wide range of people, and a range of attitudes towards immigrants will be apparent. I think one must assess the expectations of the community by having regard to the opinions of a reasonable independent person who is acquainted with all of the facts. It follows that opinions of close friends and relatives must be treated with caution.
  3. The task of divining the views of a hypothetical reasonable independent person has been made much easier in this case by the large number of positive character references provided by members of the community. These people know Mr McIntosh and are aware of his history. Most of them are uncompromised by a close or familial relationship to the applicant or Mr McIntosh. Their views were best summed up by the evidence of Mr Brendecke, to whom I have already referred. He said Mr McIntosh had reformed and should be given another chance because he was now an exemplary member of the community.
  4. In all the circumstances, I think the Australian community would expect Mr McIntosh should be allowed to return to Australia notwithstanding the relatively serious nature of his past conduct. I think this consideration counts heavily in Mr McIntosh’s favour.

The AAT found in favour of the applicant and exercised the discretion in his favour.

Barbara DavidsonSubstantial Criminal Record – Imprisonment