The applicant, originally from Vietnam, arrived in Australia at the age of 19 on a student visa. He married TH (name redacted) and had two children, subsequently being granted a Subclass 801 Partner visa in 2013. Unfortunately, the marriage deteriorated, leading to a breakdown in the relationship. Despite this, he maintained a cordial relationship with his ex-wife and remained in regular contact with his children.
In 2018, the applicant was arrested on charges related to the supply of methylamphetamine. Consequently, in 2020, his Partner visa was cancelled on the basis of failing the character test stipulated under sections 501(6)(a) and (7)(c) of the Migration Act.
Following the partner visa cancellation, the applicant appealed for a revocation of the decision. However, the delegate opted not to revoke the cancellation. Subsequently, the applicant sought a review of this decision at the Administrative Appeals Tribunal (AAT).
Not Passing the Character Test for the Partner Visa
No dispute that Applicant does not pass the character test having been sentenced to a term of 12 months or more (7 years).
Consideration of the primary considerations under Part 2 of Direction No.99:
- Protection of the Australian Community:
- While the nature of the criminal offending is of a serious nature, several expert opinion provides that his risk of reoffending is low.
- The Tribunal also accepts the Applicant’s contention that his drug-related offence was a “short lived foray into the drug underworld” which was the result of his drug and gambling addictions after the breakdown of his marriage.
- The applicant has accepted full responsibility of his conduct and modelled good behaviour in prison and is proactively receiving rehabilitation.
- Strength, Nature and Duration of ties and best interest of Australian Children
- Applicant has good relationship and strong ties to his children from his previous marriage and his current marriage. His children, his wife, and his ex-wife provided letters of support expressing the Applicant’s ties to his children and family in Australia.
- The Applicant’s parents are also permanently residing in Australia, the Applicant does not have close family ties back in his home country, Vietnam.
- Expectations of the Australian Community
- While the nature of the offence is serious favouring non-revocation of his visa cancellation, the Tribunal considered the fact that Australia generally affords a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in and contributed to the Australian community from a very young age. Therefore, considering the fact that the Applicant came to Australia since young age, 19, and contributed to the Australian community by consistently being employed and volunteered for the past 15 years before his first criminal offence, the Tribunal is satisfied that the Applicant should be accorded with a somewhat higher level of tolerance by the Australian community
- The extent of Impediments if removed: The applicant has received tremendous support from his family in Australia in relation to his anxiety, and depression which was crucial to his recovery and rehabilitation. The Applicant would not have such support in Vietnam as he does not have close family ties. The applicant also suffers from several health conditions such as stroke, mild numbness and blindness on his right eye, and other related health conditions. The Applicant would not be able to receive adequate treatment and rehabilitation in Vietnam.
Tribunal Decision
Overall, the Tribunal is satisfied with the evidence provided by the Applicant which supports the finding that the Applicant is unlikely to reoffend or to engage in future acts of social harm; he has the support of his pro-social and loving family and has the capacity to provide moral and economic support for his children.
The student visa cancellation of the Applicant’s visa was revoked.
Thoughts: I have reviewed multiple cases of visa cancellation revocations within the AAT and observed a recurring trend. The Tribunal consistently emphasizes the duration of the applicant’s residence and contributions to the Australian community. It appears that a more extended period of residency and active involvement within Australia can lead to greater leniency from the community regarding the applicant’s transgressions. This, however, applies with the caveat that the offense is not related to violent crimes, child-related offenses, or sexual offenses.
