Learning from AAT's Decision: How Character Issues Can Impact Partner Visa Applications

Last month, the AAT affirmed a decision of the Minister for Immigration, Citizenship and Multicultural Affairs (the Department) not to revoke the mandatory cancellation of the Applicant’s partner (Subclass 801) visa.

Partner Visa (Subclass 801/801) Cancelled due to Character Issues

The Applicant came to Australia on a partner visa (Subclass 801) from Fiji, to reunite with his Australian partner in 2019. He was charged with 6 counts of different offences, two (2) of which were involved in serious family violence nature. Consequently, the Applicant was sentenced to a period of 16 months imprisonment with a 10-month non-parole period. 

The Applicant’s visa was then cancelled mandatorily by the Department on character grounds under s.501(3A) of the Migration Act. He did not pass the character test that was set under s.501(6)(a) and 501(7)(c) of the Act as a substantial criminal record had been established that he had been sentenced for more than 12 months in prison. 

What Happens after A Partner Visa is Cancelled?

After knowing his visa had been cancelled, the Applicant submitted his representation to the Department and requested to revoke the cancellation decision. It had been refused. He then subsequently applied for merits review at the Administrative Appeal Tribunal (AAT). 

To revoke the mandatory cancellation of the Applicant’s visa under s 501CA(4)(b) of the Act, the AAT must be satisfied that there is another reason, considering Ministerial Direction no.110, to revoke the cancellation.

What does the AAT consider to deciding on a Visa Cancellation Appeal?

The AAT is required to consider the five primary considerations set under the latest Ministerial Direction no.110 (MD 110) that was introduced in June 2024, which includes: 

1. the protection of the Australian community from criminal or other serious conduct; 

2. whether the conduct engaged in constituted family violence; 

3. the strength, nature and duration of ties to Australia; 

4. the best interest of minor children in Australia; and 

5. the expectations of the Australian community. 

Other than the primary considerations, there are also other factors that the AAT must take into account when reviewing the case, such as legal consequences of the decision e.g. the non-refoulement obligations, extent of impediments if removed and impact on Australian business interests. 

AAT’s Decision for this Visa Cancellation due to MD 110

In deciding whether to revoke this mandatory cancellation decision, the AAT found the Applicant’s offending has increased in frequency since the first offence and the evidence indicates that the Applicant’s offending has increased in seriousness from his first drunk driving charge to his later very serious acts of family violence, and given that the latest MD 110 addressed a heavyweight when comes to considering substantial criminal records, especially to serious family violence nature, hence the AAT affirmed the Department’s decision in not to revoke the cancellation decision on the applicant’s visa. 

What you can do if you are experiencing Family Violence on a Pending Partner Visa?

If you are experiencing some form of abuse from your partner who is your sponsor and you feel stuck as you have a pending Partner visa. Your safety is your main priority! Our lawyers can assist you with your visa due to domestic and/or family violence provisions. Additionally, you can also receive additional support from the Department as a domestic violence victim.

How Can Agape Henry Crux Help You

To avoid a situation like the abovementioned Applicant, speak to an Accredited Specialist for valuable and tailored advice to your case, before it is too late. You can book a Migration Planning Session with one of our Accredited Specialist and immigration lawyers to seek professional advice by calling 02-83105230 or email us to book a time at info@ahclawyers.com.

We speak fluent English, Mandarin, Cantonese and Malay. If these aren’t your language, we can also help you arrange an interpreter.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.