AAT Case: Setting Aside of a Decision to Refuse a Bridging Visa Application Based on Character Test

KR concerns a refusal of a bridging visa application by the delegate on the grounds that the Applicant fails the character test. The delegate’s decision was set aside by the Administrative Appeals Tribunal.

Relevant facts

The Applicant is a citizen of New Zealand. On 05 December 2016, the Applicant was granted a Special Category (Subclass 444) visa. On 11 October 2017, he was convicted of damaging property and fined $200. He was also ordered to pay $188 in costs. On 02 May 2018, the Applicant was involved in an argument with his former partner. He was charged for the following offences:

(a) Threatening to kill

(b) Aggravated common assault

(d) Possession of a firearm

(e) Possession of ammunition

Due to the above charges, his Special Category (Subclass 444) visa was cancelled. The Applicant then applied for a Bridging Visa. However, it was refused under section 501(1) of the Migration Act on the basis that there is a risk the Applicant would engage in criminal conduct in Australia. Subsequent to the refusal decision, the “threatening to kill” charge arising out of the 02 May 2018 incident was discontinued on the basis that there was “no reasonable prospects of conviction in relation to the charge”.

Prior conduct must indicate more than a minimal or remote chance that the Applicant would engage in criminal conduct.

The Tribunal is of the view that what the delegate has done is to identify past conduct, or in a number of cases just alleged conduct, without any identification or development of the factors that would indicate that the past criminal conduct would be repeated or which would otherwise indicate that the Applicant “would engage in the future in the specified conduct”. A person charged with an offence is entitled to the presumption of innocence and fair trial. Little weight should be given to unproved charges because generally they are not to be considered until the charges have been finally determined.

Lesson of the day

While past conduct is obviously an indicator of likely future conduct, the mere commission of offences or offending conduct in the past is not, of itself, sufficient. The nature and severity of the offending, the relative infrequency of the offending, the circumstances in which the previous offending occurred and the conduct of the Applicant since the last offence will be taken into consideration by the Tribunal in determining there is a risk of the Applicant engaging in the relevant conduct if he were to be granted a visa.

Getting Assistance

If you have any questions or would like us to assist you in addressing character issues, simply call one of our highly trained immigration lawyers at Agape Henry Crux on (02)-7200 2700 or email us to book in a time at info@ahclawyers.com